Castro v. Admar Supply Co.

• Decision Date: 23 March 2018
• Docket Number: 1554,CA 17–00170
• Citation: 73 N.Y.S.3d 856,159 A.D.3d 1616
• Parties: Ralfael CASTRO, Plaintiff–Respondent, v. ADMAR SUPPLY COMPANY, INC., Defendant–Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1616

73 N.Y.S.3d 856

Ralfael CASTRO, Plaintiff–Respondent,

v.ADMAR SUPPLY COMPANY, INC., Defendant–Appellant. (Appeal No. 2.)

1554

CA 17–00170

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

Entered: March 23, 2018

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (WILLIAM K. KENNEDY OF COUNSEL), FOR DEFENDANT–APPELLANT.

BERGEN & SCHIFFMACHER, LLP, BUFFALO (JOSEPH R. BERGEN OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.

MEMORANDUM AND ORDERMemorandum:

Plaintiff commenced this action seeking damages for injuries that he sustained when he was struck by defendant's aerial lift while he and defendant's former employee were moving the lift. In his bill of particulars, plaintiff alleged that he suffered injuries to his head

, neck, back, shoulders, hands, right arm, right knee, and left leg, and he stated that he sought damages for "pain and suffering, past, present, and future; permanency of his injuries and conditions, loss of enjoyment of life and loss of earnings." In appeal No. 1, defendant appeals from an order that denied its motion for a protective order. In appeal No. 2, defendant appeals from an order that, inter alia, denied those parts of its subsequent motion (second motion) seeking to compel plaintiff to provide authorizations for certain records, and to dismiss the complaint or suppress the deposition testimony of defendant's former employee on the ground that plaintiff violated a prior discovery order by deposing the former employee prior to defendant's deposition of plaintiff.

We reject defendant's contention in appeal No. 1 that Supreme Court erred in denying that part of its motion for a protective order preventing plaintiff's counsel from speaking with defendant's former employee outside of his deposition on the ground that such communication would violate the attorney-client privilege. "It is well settled that the court is invested with broad discretion to supervise discovery ..., and only a clear abuse of discretion will prompt appellate action" ( Mosey v. County of Erie, 148 A.D.3d 1572, 1573, 50 N.Y.S.3d 641 [4th Dept. 2017] [internal quotation marks omitted]; see Hann v. Black, 96 A.D.3d 1503, 1504, 946 N.Y.S.2d 722 [4th Dept. 2012] ). Where, as here, a party seeks a protective order under the attorney-client privilege, "the burden of establishing any right to protection is on the party asserting it" ( Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377, 575 N.Y.S.2d 809, 581 N.E.2d 1055 [1991] ; see generally Cascardo v. Cascardo, 136 A.D.3d 729, 730, 24 N.Y.S.3d 742 [2d Dept. 2016] ), and we conclude that the court did not abuse its discretion in denying defendant's motion.

Even assuming, arguendo, that the attorney-client privilege extends to communications between counsel for a corporation and a former employee of that corporation, we conclude that the boilerplate claims of privilege asserted in defendant's moving papers were insufficient to establish the existence of confidential communications between counsel and the former employee for the purpose of rendering or facilitating the rendition of legal advice or services (see Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68–69, 431 N.Y.S.2d 511, 409 N.E.2d 983 [1980] ; see also Nicastro v. New York Cent. Mut. Fire Ins. Co., 117 A.D.3d 1545, 1546, 985 N.Y.S.2d 806 [4th Dept. 2014], lv dismissed 24 N.Y.3d 998, 997 N.Y.S.2d 108, 21 N.E.3d 560 [2014] ).

We reject defendant's further contention in appeal No. 1 that the court erred in denying that part of its motion for a protective order preventing plaintiff's counsel from deposing defendant's former employee before defendant deposed plaintiff. As a general rule, a defendant has priority of depositions where notice of the deposition of a party is served before the time to answer has expired (see Serio v. Rhulen, 29 A.D.3d 1195, 1196, 815 N.Y.S.2d 320 [3d Dept. 2006] ; see also CPLR 3106[a], [b] ). The "examination of a former employee of a party[, however,] is not examination of that party through the former employee" ( McGowan v. Eastman, 271 N.Y.195, 198, 2 N.E.2d 625 [1936] ). Inasmuch as defendant's former employee is not a party, defendant does not have priority of depositions with respect to the former employee, and thus the court did not err in denying defendant's motion for a protective order preventing plaintiff's counsel from deposing defendant's former employee before defendant deposed plaintiff. For the same reason, contrary to defendant's contention in appeal No. 2, the court did not err in denying that part of the second motion seeking to dismiss the complaint or preclude the deposition of defendant's former employee on the ground that plaintiff improperly deposed the former employee before defendant deposed plaintiff.

Defendant further contends in appeal No. 2 that the court erred in denying that part of its second motion seeking to compel plaintiff to provide unrestricted authorizations for his preaccident medical records, drug and alcohol treatment and mental health treatment records, pharmaceutical records, and employment and school records. Contrary to defendant's contention, the allegations in plaintiff's bill of particulars are not so broad " ‘that they place plaintiff's entire medical history in controversy’ " ( Reading v. Fabiano [appeal No. 2], 126 A.D.3d 1523, 1524, 6 N.Y.S.3d 360 [4th Dept. 2015] ; see Schlau v. City of Buffalo, 125 A.D.3d 1546, 1547–1548, 4 N.Y.S.3d 450 [4th Dept. 2015] ; Tabone v. Lee, 59 A.D.3d 1021, 1022, 873 N.Y.S.2d 401 [4th Dept. 2009] ). Plaintiff, in commencing a personal injury action, waived "the physician/patient privilege only with respect to the physical and mental conditions [that he] affirmatively placed in controversy" ( Mayer v. Cusyck, 284 A.D.2d 937, 937, 725 N.Y.S.2d 782 [4th Dept. 2001] ), and not with respect "to information involving unrelated illnesses and treatments" ( Schlau, 125 A.D.3d at 1548, 4 N.Y.S.3d 450 [internal quotation marks omitted] ).

We agree with defendant, however, that plaintiff's preaccident...