Lopresti v. P&M Constr. Commercial Maint. & Remodeling

• Decision Date: 29 November 2022
• Docket Number: Index No. EF2019-263169
• Citation: 2022 NY Slip Op 51167 (U)
• Court: New York Supreme Court
• Parties: Toni Lopresti, Plaintiff, v. P&M Construction Commercial Maintenance & Remodeling, Inc., BELIVEAU MECHANICAL, INC., W.C. WALLIN ASSOCIATES, LTD, STANDEX INTERNATIONAL CORPORATION, BKI WORLDWIDE, INC., SYSTEMS IV, INC., AND HORIZON FOOD EQUIPMENT, INC., doing business as HORIZON BRADCO, Defendants.

2022 NY Slip Op 51167(U)

Toni Lopresti, Plaintiff, v. P&M Construction Commercial Maintenance & Remodeling, Inc., BELIVEAU MECHANICAL, INC., W.C. WALLIN ASSOCIATES, LTD, STANDEX INTERNATIONAL CORPORATION, BKI WORLDWIDE, INC., SYSTEMS IV, INC., AND HORIZON FOOD EQUIPMENT, INC., doing business as HORIZON BRADCO, Defendants.

Index No. EF2019-263169

Supreme Court, Rensselaer County

November 29, 2022

Unpublished Opinion

Cooper, Irving & Savage, LLP Attorneys for Plaintiff Christopher P. Flint, Esq.

Burke Scolamiero & Hurd, LLP Attorneys for Defendant Beliveau Mechanical Judith B. Aumand, Esq., of counsel

O'Connor, O'Connor, Bresee & First, P.C Attorneys for Defendant P & M Construction Elizabeth Grogan, Esq., of counsel

Henry F. Zwack, J.

In this personal injury action, the defendant Beliveau Mechanical ("Beliveau") has moved pursuant to CPLR 3124, 3126 and/or 22 NYCRR 202.21 for an Order Striking the Note of Issue and/or for an Order compelling plaintiff to provide further discovery in the form of authorizations, a further deposition of the plaintiff, and submission by the plaintiff to a vocational rehabilitation examination and psychological IME. Beliveau asserts that the plaintiff has advanced new claims in her Supplemental Bill of Particulars, which now necessitate the demand for a further deposition of the plaintiff and requested authorizations from the recently identified doctors, as well as for all her mental health counseling or related documents. Further, related to the plaintiff's earning history, and for a requested vocational rehabilitation examination, Beliveau also seeks authorizations from Social Security, Worker's Compensation, Hannaford, Dr. Parnes, Dr. Jason Mouzakes, and the New York State Department of Labor. Beliveau also seeks an order allowing it to access the plaintiff's Facebook account. Beliveau also argues that the Note of Issue should be stricken, asserting that the plaintiff's Bill of Particulars and expert witness disclosure are inadequate.

The plaintiff opposes, and has moved for an in camera review of the plaintiff's Facebook account, a protective order against any further production of medical records and/or Arons authorizations, denying or limiting the scope of any defense psychological evaluation, and against any further disclosure, including supplementing the Bill of Particulars or expert disclosure and a further deposition of the plaintiff.

As background, defendant Beliveau and defendant P & M Construction ("P & M") are the only remaining defendants in this personal injury action which was commenced on March 20, 2017. ^[1] The summons and complaint were amended on November 28, 2018. According to the amended complaint, the plaintiff suffered injuries on May 17, 2016 at Hannaford in East Greenbush while working in the deli department. The plaintiff alleges the defendants Believeau and P & M carelessly and negligently installed piping immediately above and /or in close proximity to an electrical outlet that supplied power to a deep fryer. The plaintiff contends that the involved installation caused a leak into the electrical outlet which in turn caused the electrification of the deep fryer and causing the plaintiff's injuries.

For the reasons that follow the Court denies the defendant Beliveau's motion to strike the Note of Issue and limits further discovery as set out below. The plaintiff's cross motion is granted in part and to the extent also set out below.

Here, the Court is mindful that it "is vested with considerable discretion to supervise the discovery process" (Superintendent of Ins. of State of NY v Chase Manhattan Bank, 43 A.D.3d 514, 516 [3d Dept 200]), and "[w]hile a note of issue will generally be stricken if the case is not ready for trial, the motion to strike can be denied where the parties had sufficient time to complete discovery... (and the) discovery requests must be legitimate and pending, not resolved or contrived" (Ireland v Geico Corp., 2 A.D.3d 917, 917-918 [3d Dept 2003]); Rosen v Mosby, 180 A.D.3d 1253 [3d Dept 2020]. Stated differently, there comes a time in all cases, particularly where "there has been a reasonable opportunity to complete proceedings... (where further discovery is ordered only where a defendant demonstrates) special, unusual or extraordinary circumstances" (Grant v Wainer, 179 A.D.2d 364, 364-365 [1st Dept 1992]).

The record amply establishes that the plaintiff has complied, and in some instances multiple times, with the defendants' request for authorizations prior to the filing of the Note of Issue, and also after. According to the plaintiff's counsel's letter of August 10, 2022, Drs. Parnes and Mouzakes authorizations were provided on 7/7/2022. The record also shows that Dr. Parnes authorizations were in fact provided on three separate occasions, and Hannaford's twice (5/2/2018 and 12/12/2018). The Court notes that although the defendant Beliveau's counsel provided copies of her correspondence demanding authorizations, she has not provided the plaintiff's responses - which demonstrate that all the authorizations, including the ones which were requested to be Arons compliant, have been served by the plaintiff.

Turning to the plaintiff's Amended Complaint, she describes herself as "disabled" as a result of the defendants' negligence. The Court's review of the record reveals that the Social Security Administration ("SSA") determined plaintiff to be totally disabled in a decision made on April 28, 2021, and according to that decision the plaintiff's disability commenced on the date of the May 17, 2016 accident. However viewed, Beliveau knew or should have known that the SSA disability finding would trigger an economic evaluation of the plaintiff's life-time earning capacity. Stated differently, if it wished to attack the SSA finding of total disability through the retention of a vocational rehabilitation expert, Beliveau was on notice at least a year prior to the plaintiff's second deposition on May 22, 2022. The same is true with the issue of economic loss, the inquiry of which should have been commenced at the outset of the action or at least no later than eighteen months ago. All said, in the Court's view the defendants had amply time to obtain the now demanded discovery, and certainly well before the filing of the Note of Issue. Accordingly, and mindful of the trial scheduled for February 6, 2023, the Court denies Beliveau's requests for authorizations for Social Security, Worker's Compensation and the Labor Board, and also denies a further deposition of the plaintiff on these issues.

The Court notes that the plaintiff has agreed to an examination by a vocational rehabilitation expert, but was unable to complete it due to her disability. The Court further finds that Beliveau had sufficient notice, time and opportunity to conduct this evaluation prior to the filing of the Note of Issue. Now, if the plaintiff is unable to voluntarily complete the examination, she is not precluded from presenting at trial proof on the issue of her...