Dehaney v. New York City Transit Authority

• Decision Date: 27 March 1997
• Citation: 180 Misc.2d 695,694 N.Y.S.2d 831
• Parties: , Michelle DEHANEY et al., Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant. Bronx County
• Court: New York City Court

Page 831

694 N.Y.S.2d 831

180 Misc.2d 695, Michelle DEHANEY et al., Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant.

Civil Court, City of New York,

Bronx County.

March 27, 1997.

Michael Joseph J. Barnas, New York City, for plaintiffs.

Wallace D. Gossett, Brooklyn, for defendant.

DORIS LING-COHAN, J.

This is an action for damages for personal injuries allegedly sustained due to a falling wood slab from a passing subway train. Pursuant to CPLR § 3126, plaintiffs move, inter alia, to strike defendant's answer for failing to produce a witness for examination before trial in accordance with a preliminary conference order dated February 2, 1995. Defendant has cross-moved to compel plaintiffs to provide various authorizations for medical records and formal responses to its discovery demands.

This motion and cross-motion present three issues for disposition: (1)whether the circumstances surrounding the defendant's failure to appear at a court-ordered deposition warrant the striking of defendant's answer; (2) whether plaintiffs were under a continuing obligation, pursuant to CPLR § 3101(h), to amend/supplement their responses to defendant's prior discovery demand for medical and hospital records; and (3) whether it is proper for a plaintiff in a personal injury action to shield records from her treating physician based on a claim that the material was prepared for litigation. The second issue is of apparent first impression.

Striking the Answer

In opposition to plaintiffs' motion, defendant's attorney has failed to supply the court with an excuse for its client's failure to appear at the previously court ordered examination before trial, scheduled to be held on May 4, 1995. Defendant also does not dispute plaintiffs' contention raised in the moving papers that defendant failed to appear at the rescheduled deposition on August 10, 1995. However, in its opposition defendant does indicate a current willingness to comply.

Striking the answer of a party is an "extreme and drastic penalty" warranted only where the conduct is "clearly deliberate or contumacious". Henry Rosenfeld, Inc. v. Bower and Gardner, 161 A.D.2d 374, 555 N.Y.S.2d 320 (1st Dept.1990). Even where there was an inexcusable and repeated failure to appear for a court ordered deposition, striking the answer for failure to appear for a deposition has been held to be too drastic a remedy. Davis v. City of New York, 205 A.D.2d 442, 613 N.Y.S.2d 898 (1st Dept.1994); see also In re Hunter Mechanical Corp. v. Salkind, 237 A.D.2d 180, 654 N.Y.S.2d 381 (1st Dept.). Nevertheless, defendant's failure to follow the court's preliminary conference order directing that the deposition be held cannot be ignored by this court. Although the court is not satisfied that defendant and its counsel's actions in failing to comply with the preliminary conference order dated February 2, 1995 were so willful and contumacious as to warrant the extreme penalty of striking defendant's answer, they do warrant the imposition of reasonable attorneys fees to compensate plaintiffs for the additional time and expense incurred in seeking the previously ordered relief. See Oppenheim & Macnow v. Worth, 103 A.D.2d 687, 477 N.Y.S.2d 351 (1st Dept.1984); Heyward v. Benyarko, 82 A.D.2d 751, 440 N.Y.S.2d 21 (1st Dept.1981). Plaintiffs' request for attorneys fees is therefore granted. See Garfield v. Done Fashion, Inc., 227 A.D.2d 128, 641 N.Y.S.2d 301 (1st Dep.t1996); Marotta v. Rood, 65 A.D.2d 807, 410 N.Y.S.2d 368 (2nd Dept.1978). Furthermore, a conditional order striking the answer is warranted as set forth below. See Garfield v. Done Fashion, Inc., 641 N.Y.S.2d at 302.

Accordingly, plaintiffs' motion to strike defendant's answer is granted to the extent it is

ORDERED that defendant appear and submit for examination before trial by producing a witness or witnesses with knowledge of railroad operations, including operations of the No. 2, White Plains Road train at the time and site of the alleged accident, at a Special Term, Part II, of this Courthouse (Room 118M) on Wednesday, June 4, 1997 at 10:00 A.M., or at another date and location agreed to pursuant to written stipulation between the parties. The party to be examined shall produce all relevant books, records, documents and reports for use in connection with such examination; it is further

ORDERED that defendant pay plaintiffs $500.00 towards their attorney's fees in accordance with CPLR § 3126, within 45 days of service of a copy of this order; it is further

ORDERED that plaintiffs' time to file a notice of trial is extended through December 31, 1997.

Additionally, it appearing that defendant has failed to comply with the preliminary conference order dated February 2, 1995, upon defendant's failure to comply as ordered above, it is

ORDERED that defendant's answer is stricken in accordance with CPLR § 3126.

Additional Medical Authorizations/Records

Defendant cross-moves to compel plaintiffs to provide various medical authorizations to obtain medical records and formal responses to its discovery demands dated January 25, 1994. It is undisputed that defendant previously served upon plaintiffs a "Demand for Medical and Hospital Records" dated January 25, 1994, which includes a request for authorizations. It is also undisputed that prior to the deposition of plaintiff Michelle Dehaney, plaintiffs provided defendant with several authorizations to obtain various medical records. According to defendant, however, it is entitled to further medical records and authorizations because plaintiff Michelle Dehaney made references to Dr. Tarlin and Dr. Michael at her deposition for which authorizations were not previously provided.

Plaintiffs argue that all previously demanded discovery has been provided. Additionally, plaintiffs maintain that, as to defendant's request that this court order plaintiffs to provide original authorizations for Dr. Tarlin and Dr. Michael, defendant must serve a new demand for these additional authorizations. Plaintiffs argument that "[s]ince defendant has never requested by written notice, request or demand authorizations for new doctors, plaintiffs are not in default of any such production, there is no discovery due from them that is outstanding and this cross-motion is without foundation and groundless", is without merit.

This court holds that, pursuant to CPLR § 3101(h), plaintiffs are under a continuing obligation to amend/supplement their responses to defendant's prior discovery demands and that a new demand for these authorizations need not have been served by defendant. Although CPLR § 3101(h) is a relatively new section and there is little case law, it is clear on its face. CPLR § 3101(h) requires that a party amend/supplement its response to a request for disclosure promptly upon obtaining information that the response was incorrect or incomplete when made, or that the response, though correct and complete when made is, no longer correct and complete, and that the circumstances are such that a failure to amend or supplement the response would be materially misleading. CPLR § 3101(h), effective January 1, 1994, was modeled after § 26(e) of the Federal Rules of Civil Procedure which explicitly requires that a party, under certain circumstances, promptly supplement or amend responses to disclosure requests. See 2 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 3101.61; 1993 McKinneys' Session Laws of New York at 2951.

Simply put, CPLR § 3101(h) imposes a "duty", and requires all parties to "assume the initiative" and...