Bermejo v. N.Y.C. Health & Hosps. Corp.

• Decision Date: 18 November 2015
• Citation: 135 A.D.3d 116,21 N.Y.S.3d 78
• Parties: Manuel BERMEJO, respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., defendants, Ibex Construction, LLC, et al., appellants (and another action and third-party actions).
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 116

21 N.Y.S.3d 78

Manuel BERMEJO, respondent,

v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., defendants, Ibex Construction, LLC, et al., appellants (and another action and third-party actions).

Supreme Court, Appellate Division, Second Department, New York.

Nov. 18, 2015.

Andrea G. Sawyers (Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. [Timothy R. Capowski and Deirdre E. Tracey ], of counsel), for appellant Ibex Construction, LLC.

London Fischer, LLP, New York, N.Y. (Richard L. Mendelsohn of counsel), for appellant Amsterdam & 76th Associates, LLC.

Constantinidis & Associates, P.C. (Lynn, Gartner, Dunne & Covello, LLP, Mineola, N.Y. [Joseph Covello and Kenneth L. Gartner ], of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.

ROMAN, J.

Prior to the trial on the issue of damages in this personal injury action, the plaintiff's trial attorney surreptitiously videotaped an independent medical examination (hereinafter IME) conducted by an orthopedist retained by the defendant Ibex Construction, LLC (hereinafter Ibex). The attorney failed to disclose the existence of that recording to defense counsel, and then revealed its existence for the first time at trial, during redirect examination of his own paralegal, who took the witness stand to testify as to the brevity of the orthopedist's examination of the plaintiff. This resulted in the declaration of a mistrial, and the orthopedist subsequently declared that he was not willing to testify at the new trial. Since Ibex and the defendant Amsterdam & 76th Associates, LLC (hereinafter Amsterdam, and together the appellants), would be required to serve a subpoena upon the orthopedist to secure his testimony at the new trial, they separately moved, inter alia, for leave to have the plaintiff re-examined by an orthopedist of their own choosing, and for an award of costs against plaintiff's counsel pursuant to 22 NYCRR 130–1.1. Justice Duane A. Hart of the Supreme Court, Queens County, denied those branches of the appellants' separate motions.

These appeals require us to determine whether a plaintiff's attorney must obtain approval from the court before making a video recording of an IME of the plaintiff, and whether CPLR 3101 requires that such a recording be disclosed to opposing counsel before trial. We answer both questions in the affirmative. We further conclude that the declaration of a mistrial in this case was attributable to the conduct of the plaintiff's trial attorney. Moreover, we find that the orthopedist was unwilling to testify voluntarily at the new trial because of that conduct and because the Supreme Court repeatedly, without any basis in fact, accused the orthopedist of lying during his cross-examination. The court also repeatedly threatened to recommend that the District Attorney's office prosecute the orthopedist for perjury. Accordingly, those branches of the appellants' separate motions which were for leave to have the plaintiff re-examined by an orthopedist of their own choosing and for an award of costs against plaintiff's counsel pursuant to 22 NYCRR 130–1.1 should have been granted, and we remit the matter to the Supreme Court, Queens County, before a different Justice, for further proceedings consistent herewith.

Background

The plaintiff, Manuel Bermejo, commenced the underlying action to recover damages for personal injuries sustained by him when he fell from a scaffold at a construction site located at premises owned by Amsterdam. Ibex was the general contractor for the construction project. The plaintiff was awarded summary judgment against the appellants on the issue of liability on the cause of action alleging a violation of Labor Law § 240.

Prior to the trial on the issue of damages, Ibex retained an orthopedic physician, Michael J. Katz, who conducted an IME of the plaintiff in May 2011. The plaintiff was accompanied at the IME by his trial attorney, Patrick J. Hackett, who was of counsel to Constantinidis & Associates, the law firm representing the plaintiff, as well as Yury Ramirez, a paralegal employed by Constantinidis & Associates, who served as a Spanish language interpreter for the plaintiff. In the report he prepared after conducting the IME, Dr. Katz noted that "[t]he evaluation took place between the hours of 6:00 p.m. and 6:45 p.m." Dr. Katz interviewed the plaintiff, took various measurements, examined his lumbosacral spine and his right foot and ankle, and reviewed approximately 30 medical reports relating to the plaintiff generated by various physicians since the time of his accident. Dr. Katz's report stated that Mr. Hackett "had a series of nasty outbursts regarding the history of this injury." The report asserted that Mr. Hackett refused to allow the plaintiff to answer any questions relating to the happening of the accident, the medical treatment he received afterward, or his present complaints, and instead advised Dr. Katz, among other things, that he should get the information from defense counsel. The report also contained the following comments:

"Mr. Hackett presented quite a nasty and obstructive front toward getting a proper history .... Mr. Hackett just became nastier as questions were asked. ... It is highly unusual for an individual's attorney to behave as Mr. Hackett did in order to mislead the examiner and try to get them [sic] to believe that these changes were acute and not chronic."

In March 2013, after surgery on the plaintiff's shoulder, Dr. Katz performed a second IME, which focused on the plaintiff's shoulder. Once again, Mr. Hackett and Ms. Ramirez were with the plaintiff in the examining room.

In April 2013, the damages trial commenced in the Supreme Court. The plaintiff was represented at the trial by Mr. Hackett and Gus J. Constantinidis, and Ms. Ramirez was also present in the courtroom. Ibex was represented by Michael T. Reilly, and Amsterdam was represented by Richard L. Mendelsohn. Dr. Katz testified regarding the IMEs he performed and the findings he made. During his direct examination by Mr. Reilly, the proceedings were interrupted. Although the transcript of that portion of the proceedings does not reflect exactly what occurred, it appears, based on subsequent colloquy, that Ms. Ramirez had a visible reaction to certain testimony given by Dr. Katz. What the transcript does reflect is the following exchange¹ :

"Q: We're talking about the first examination, Doctor. How long did that first examination of Mr. Bermejo take in May of 2011?

"A: 45 minutes.

"Q: Could you describe the examination that was done?

"A: First a history done.

"THE COURT: Excuse me. Send the jury out.

"(Whereupon the jury exited the courtroom and the following occurred)

"THE COURT: Doctor, step out.

"(Witness complies)

"THE COURT: Everybody be seated. In the spirit of the witness' stay outside, I observed something. Mr. Hackett, Mr. Constantinidis, speak to your office person because she may be a potential witness. You could speak to her here, as long as you speak to her, because I have a feeling you are going to call her.

"(Short pause)

"THE COURT: Do you need me to explain what I just did?

"MR. HACKETT: Yes, that would be—

"THE COURT: It appears that, and because, you know, the jury is supposed to observe everything that goes on in the courtroom. The young lady's name is Gina [Yury]?"

...

"THE COURT: Uri [sic]. She was the person who took Mr. Bermejo to see the doctor on at least one occasion?

"MR. HACKETT: Both.

"MR. CONSTANTINIDIS: Both occasions.

"THE COURT: She was—she might differ as to some of the testimony of the doctor, fair statement?

"MR. HACKETT: Yes, your Honor.

"THE COURT: That's why. I now, based upon what I observed, I have now-and you plan to call her, I would imagine?

"MR. HACKETT: I do believe I will be doing that, your Honor.

"THE COURT: Bring the jury back in. Get the doctor first.

"MR. REILLY: We have no notice of a witness like that, so I would just object at this point.

"THE COURT: Again—

"MR. HACKETT: It would be in the way of rebuttal, your Honor.

"THE COURT: Okay."²

The direct examination of Dr. Katz then resumed, and was completed. During the cross-examination of Dr. Katz by Mr. Hackett, the testimony that lies at the heart of the controversy presented on these appeals was given. Dr. Katz was questioned as follows:

"Q: Doctor, on that first exam I believe you said you took 45 minutes; is that correct?

"A: Right.

"Q: And on that second exam of the shoulder[,] how long did that take?

"A: That's uncertain.

"Q: Uncertain?

"A: I don't think I have a record. I don't think I have it recorded, no. I don't think it's recorded.

"Q: Or would you say it's more or less than 30 minutes?

"A: I don't really recall at this point.

"Q: Well, how long do you have a custom and practice when you're doing a shoulder exam as to how long you generally take?

"A: I don't really have, you know, an allocated time.

"Q: Well, would you believe in at least your experience that it would be more or less than 15 minutes?

"A: Quite frankly, I don't know.

"THE COURT: Excuse me, Doctor, I cannot accept an I don't know. You have been doing this for awhile. I will have to insist on what your custom and practice would be as to what type of, the length of an exam of this type.

"THE WITNESS: I think in the range of between ten and 20 minutes would be appropriate."

After Dr. Katz's testimony was concluded, Mr. Hackett called Ms. Ramirez as a witness. With regard to the first IME of the plaintiff, Ms. Ramirez was asked how much time transpired "from the time that Dr. Katz came into the room until Dr. Katz left the room," and she responded: "About ten minutes." According to Ms. Ramirez, several minutes were consumed by arguments between Mr. Hackett and Dr. Katz, and then the plaintiff "was examined. It was about three minutes or four minutes tops." When asked whether she recalled anything else about that IME, Ms. Ramirez testified: "I don't recall the details. I just know that he examined his foot. I'm...