MCCARTER, MICHAEL v. WOODS, WILLIAM ( 2013 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1117
    CA 12-00678
    PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.
    MICHAEL MCCARTER, PLAINTIFF-RESPONDENT-APPELLANT,
    V                               MEMORANDUM AND ORDER
    WILLIAM WOODS, DEFENDANT-APPELLANT-RESPONDENT.
    BURGIO, KITA & CURVIN, BUFFALO (STEVEN P. CURVIN OF COUNSEL), FOR
    DEFENDANT-APPELLANT-RESPONDENT.
    ATHARI & ASSOCIATES, LLC, UTICA (NICOLE C. PELLETIER OF COUNSEL), FOR
    PLAINTIFF-RESPONDENT-APPELLANT.
    Appeal and cross appeal from an order of the Supreme Court,
    Monroe County (Matthew A. Rosenbaum, J.), entered January 9, 2012.
    The order, inter alia, denied that part of the motion of defendant
    seeking to preclude plaintiff from offering certain medical evidence
    at trial.
    It is hereby ORDERED that the order so appealed from is modified
    on the law by denying that part of defendant’s motion concerning
    “speaking authorizations” from plaintiff’s educators and by granting
    plaintiff’s cross motion to that extent and as modified the order is
    affirmed without costs.
    Memorandum: Defendant appeals from an order that, inter alia,
    denied that part of his motion seeking to preclude plaintiff from
    offering certain medical evidence at trial based on plaintiff’s
    failure to disclose medical reports of his examining physician prior
    to the examination of plaintiff by defendant’s examining physician.
    Contrary to defendant’s contention, Supreme Court properly denied that
    part of his motion. “ ‘Absent an abuse of discretion, we will not
    disturb the court’s control of the discovery process’ ” (Marable v
    Hughes, 38 AD3d 1344, 1345; see Hann v Black, 96 AD3d 1503, 1504; MS
    Partnership v Wal-Mart Stores, 273 AD2d 858, 858).
    Turning to plaintiff’s cross appeal, we note that plaintiff
    contends that the court abused its discretion in conditionally
    granting that part of defendant’s motion to preclude plaintiff from
    presenting evidence at trial concerning his mental or physical
    condition unless plaintiff provided defendant with speaking
    authorizations for plaintiff’s medical providers and educators.
    Plaintiff further contends that the court erred in denying his cross
    motion for a protective order with respect to the speaking
    authorizations and for costs incurred because of the allegedly
    -2-                           1117
    CA 12-00678
    improper cancellation by defendant’s attorney of scheduled depositions
    of plaintiff and his mother. We reject plaintiff’s contention with
    respect to speaking authorizations for his medical providers. In
    Arons v Jutkowitz (9 NY3d 393, 409-411), the Court of Appeals provided
    the framework for conducting discovery with regard to nonparty
    healthcare providers, which includes the use of speaking
    authorizations. Arons, however, does not authorize defendant to
    obtain speaking authorizations for plaintiff’s educators. We decline
    to extend Arons to require production of speaking authorizations to
    anyone other than nonparty healthcare providers. The Arons decision
    is narrow in scope and provides a framework as to how parties must
    procedurally comply with the Health Insurance Portability and
    Accountability Act of 1996 (Pub L 104-191, 110 US Stat 1936) when
    attempting to speak with an adverse party’s treating physician.
    Defendant made no showing that the discovery devices available under
    the CPLR and the Uniform Rules for the New York State Trial Courts
    were inadequate to obtain the necessary discovery. Thus, we agree
    with plaintiff that the court abused its discretion in granting that
    part of defendant’s motion with respect to speaking authorizations for
    plaintiff’s educators and in denying defendant’s cross motion to that
    extent. We therefore modify the order accordingly.
    Finally, contrary to plaintiff’s contention, the court did not
    abuse its discretion in denying his cross motion to the extent that it
    sought reimbursement for the costs related to the rescheduled
    depositions of plaintiff and his mother (see Hilley v Sanabria, 12
    AD3d 1188, 1189).
    All concur except PERADOTTO and MARTOCHE, JJ., who dissent in part
    and vote to affirm in the following Memorandum: We respectfully
    dissent in part because we disagree with the majority that Supreme
    Court abused its discretion in conditionally granting that part of
    defendant’s motion seeking to preclude plaintiff from presenting
    evidence at trial concerning his mental or physical condition unless
    plaintiff provided defendant with speaking authorizations for
    plaintiff’s educational providers, and in denying plaintiff’s cross
    motion to that extent. We would therefore affirm the order in its
    entirety.
    Plaintiff commenced this action seeking damages for injuries he
    allegedly sustained as a result of his exposure to lead-based paint
    while residing in a rental property owned by defendant. In his second
    amended bill of particulars, plaintiff alleged that his injuries
    include, inter alia, diminished cognitive function and intelligence,
    impaired academic achievement, disability that severely limits his
    educational attainment, decreased educational opportunities, and
    “serious impairment in school functioning.” During the course of
    discovery, defendant sought the names and addresses of plaintiff’s
    witnesses, including “[a]ll witnesses in connection with any issues
    concerning damages.” In response thereto, plaintiff identified over
    190 potential witnesses, including numerous employees of the Lee
    County School District and the Rochester City School District where
    plaintiff attended school (hereafter, educational providers).
    Defendant thereafter served plaintiff with “speaking authorizations”
    -3-                          1117
    CA 12-00678
    for each of the potential witnesses identified by plaintiff, including
    the educational providers. When plaintiff refused to sign the
    authorizations, defendant moved to preclude plaintiff from presenting
    evidence at trial concerning his mental or physical condition unless
    he provided defendant with the requested authorizations, and plaintiff
    cross-moved for a protective order relative to the speaking
    authorizations.
    Contrary to the conclusion of the majority, we conclude that the
    court did not abuse its discretion in granting that part of
    defendant’s motion for a conditional order of preclusion based on
    plaintiff’s failure to provide defendant with the requested
    authorizations for his educational providers. “ ‘[I]t is well settled
    that a trial court has broad discretionary power in controlling
    discovery and disclosure, and only a clear abuse of discretion will
    prompt appellate action’ ” (Cochran v Cayuga Med. Ctr. At Ithaca, 90
    AD3d 1227, 1227). With respect to the scope of discovery, CPLR 3101
    requires “full disclosure of all matter material and necessary in the
    prosecution or defense of an action” (CPLR 3101 [a]; see Kavanagh v
    Ogden Allied Maintenance Corp., 92 NY2d 952, 954). Although so-called
    “speaking authorizations” are not specifically identified as a
    disclosure device in article 31 of the CPLR or part 202 of the Uniform
    Rules for the New York State Trial Courts, the Court of Appeals has
    written that “there are no statutes and no rules expressly
    authorizing–or forbidding–ex parte discussions with any nonparty, . .
    . [and a]ttorneys have always sought to talk with nonparties who are
    potential witnesses as part of their trial preparation. [CPLR
    a]rticle 31 does not ‘close[] off’ these ‘avenues of informal
    discovery,’ and relegate litigants to the costlier and more cumbersome
    formal discovery devices” (Arons v Jutkowitz, 9 NY3d 393, 409, quoting
    Niesig v Team I, 76 NY2d 363, 372). The Court of Appeals further
    wrote, “Our decisions plainly permit informal discovery, and the
    Legislature has not directed to the contrary. Absent such legislative
    direction, we decline to limit the scope of such discovery” (id. at
    409 n 1).
    We see no reason why nonparty educators should be less available
    than nonparty treating physicians under the principles articulated by
    the Court of Appeals in Arons (see id. at 408-409). As the court
    noted in this case, while the number of authorizations defendant seeks
    is significant, it was plaintiff who provided the names to defendant
    in response to defendant’s demand for that information, and defendant
    would bear the burden of contacting each named individual to determine
    whether he or she has relevant information. We therefore conclude
    that the court properly granted that part of defendant’s motion
    concerning speaking authorizations from plaintiff’s educational
    providers and denied plaintiff’s cross motion to that extent.
    Entered:   May 3, 2013                          Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 12-00678

Filed Date: 5/3/2013

Precedential Status: Precedential

Modified Date: 10/8/2016