Saintil v. Liberty Lines Transit, Inc.

Citation75 Misc.3d 901,171 N.Y.S.3d 776
Decision Date25 May 2022
Docket NumberIndex No. 56847
Parties Mercilia SAINTIL, Plaintiff, v. LIBERTY LINES TRANSIT, INC., County of Westchester, Westchester County Department of Public Works and Transportation, the Bee Line Bus System, Romualdo Castro, and Joseph Barrella, Defendants.
CourtUnited States State Supreme Court (New York)

Maroney O'Connor LLP, Attorneys for Defendants, Liberty Lines Transit, Inc., County of Westchester, Westchester County Department of Public Works and Transportation, The Bee Line Bus System, and Romualdo Castro, 11 Broadway, Suite 831, New York, New York 10004

Haworth Barber & Gerstman, LLC, Attorneys for Defendant, Joseph Barrella, 80 Broad Street, 24th Floor, New York, New York 10004,

Jonathan Rice, Esq., Attorney for Plaintiff, Mercilia Saintil, 377 Ashford Avenue, Dobbs Ferry, New York 10522

Joan B. Lefkowitz, J.

The motions are determined as follows:

Plaintiff commenced this personal injury action on July 2, 2020 (Exhibit A, NYSCEF Doc. 48), alleging that she was injured on September 4, 2019, while a passenger on a bus negligently owned, operated, managed, and maintained by defendants after defendant Joseph Barrella (Barrella) negligently operated his vehicle causing the bus to stop suddenly, thereby causing plaintiff's injuries. On August 5, 2020, defendants Liberty Lines Transit, Inc., County of Westchester, Westchester County Department of Public Works and Transportation, Bee Line Bus System and Romualdo Castro (Liberty Lines) interposed an answer. Plaintiff filed an amended complaint on April 8, 2021 (Exhibit B, NYSCEF Doc. 49). On April 28, 2021, Liberty Lines interposed an answer to the amended complaint with cross-claims. On June 29, 2021, Barrella filed an answer to the amended complaint with cross-claims.

The Preliminary Conference Order dated July 12, 2021, provides that physical examinations are to be held within forty-five (45) days of plaintiff's deposition (Exhibit V, NYSCEF Doc. 69). The deposition of plaintiff was held on August 11, 2021 (Exhibit U, NYSCEF Doc. 68). On August 26, 2021, defendant Barrella designated Dr. Johnathan Garay to conduct an independent medical examination (IME) (Exhibit D, NYSCEF Doc. 51). On September 17, 2021, the Court directed that IMEs be completed before December 17, 2021 (Exhibit W, NYSCEF Doc. 70). On September 17, 2021, plaintiff sent a letter inquiring if defendants would share the IME and advising that plaintiff would not be produced if defendants fail to confirm sharing (Exhibit E, NYSCEF Doc. 52). On September 29, 2021, plaintiff was advised that the defendants would share (Exhibit F, NYSCEF Doc. 53). On October 5, 2021, plaintiff advised defendants that the retained IME observer was unavailable, and that plaintiff wanted to change the IME date (Exhibit G, NYSCEF Doc. 54). On October 7, 2021, plaintiff submitted a letter declining to produce the client for the IME without plaintiff having control over the car service providing transportation (Exhibit H, NYSCEF Doc. 55).

On October 11, 2021, defendant Barrella designated Dr. Barry Kraushaar to conduct an IME. Defendants further advised plaintiff that defendants would be sharing this exam (Exhibit J, NYSCEF Doc. 57). On October 13, 2021, plaintiff submitted a letter indicating that plaintiff never consented to conducting an IME outside of the county of residence due to defendants delay in conducting the exam, defendants’ refusal to allow the daughter's presence, and defendants’ refusal to provide a car service that plaintiff can control (Exhibit K, NYSCEF Doc. 58). On November 5, 2021 (Exhibit N, NYSCEF Doc. 61) and December 3, 2021 (Exhibit P, NYSCEF Doc. 63), defendant Barrella requested a conference with the Court due to plaintiff's refusal to appear for the IMEs.

On March 21, 2022, the parties appeared for a compliance conference wherein the parties argued and discussed the letters uploaded onto NYSCEF detailing their positions and objections regarding the IME. It was resolved at the conference that plaintiff shall appear for the noticed IMEs with Dr. Garay in New York, New York and Dr. Kraushaar in Nanuet, New York, and allowed to be present with the IME observer, the neutral interpreter conducting all official interpretation, the daughter, with car service being provided by the defendants (Exhibit Q, NYSCEF Doc. 64). Subsequently, both doctors, Dr. Garay and Dr. Kraushaar, indicated that plaintiff's daughter would not be allowed in the exam room (Exhibit R, NYSCEF Doc. 65). On March 24, 2022, defendant Barrella requested another conference due to plaintiff's refusal to appear for the IMEs because the doctors would not permit plaintiff's daughter in the exam room along with the interpreter, and IME observer (Exhibit S, NYSCEF Doc. 66). On March 28, 2022, the parties appeared for a compliance conference wherein plaintiff objected to the defendants’ interpreter being in the exam room without the plaintiff's daughter, while the plaintiff has memory issues (Exhibit T, NYSCEF Doc. 67). A briefing order was simultaneously issued for the instant motions (NYSCEF Doc. 44).

Both defendants Liberty Lines and Barrella seek an Order, pursuant to CPLR 3126, precluding plaintiff from offering any evidence of her alleged disability at the time of trial based on plaintiff's unwillingness to appear for the IMEs. In the alternative, Liberty Lines and Barrella move for an Order, compelling plaintiff to appear for the IMEs with Dr. Garay and Dr. Kraushaar without her daughter being present in the exam room. Defendants argue that plaintiff's right to be examined in the presence of both an interpreter and a legal representative is adequately protected as defendants have no objection to plaintiff being accompanied by her retained IME advocate, and defendants will provide a neutral Haitian-Creole interpreter for the examinations from Magna Legal Services. According to defendants, plaintiff's requirement that her daughter also be present is superfluous and plaintiff fails to present any legitimate reason for plaintiff to require her daughter to sit in the examination room as well. Defendants contend that plaintiff's arguments regarding memory issues and errors in translation are unfounded and improper because plaintiff was deposed twice in the presence of a neutral Haitian-Creole interpreter, without issue, and plaintiff testified for nearly five hours at her deposition.

According to defendants, plaintiff's objections are not based on legitimate concerns, but plaintiff's inclination to be obstructive. Defendants contend that preclusion is warranted and plaintiff's willful and contumacious conduct in refusing to appear for Court-Ordered IMEs for eight months, can be inferred from plaintiff previously agreeing to appear for the IME outside of the county of residence, yet declining to appear, based on location.

In opposition, plaintiff asserts that she is not refusing to appear for the IMEs. Plaintiff argues that defendants do not present a legal, medical, scientific, or other reason to justify excluding the plaintiff's daughter from the examination. Nor do defendants provide evidence that the request to exclude the daughter came from the physicians. Plaintiff also argues that it is defendants who do not wish to comply with the Order dated March 21, 2022, permitting the daughter in the exam room. Plaintiff concedes that despite Court Orders to conduct the IMEs, the exams were not conducted due to disputes over the locations of the examinations, who would appear for the exams with plaintiff, who would translate, and how plaintiff would be transported to the exam. According to plaintiff, the daughter's presence in the exam room is necessary because plaintiff is aged, infirm, and physically and mentally impaired, and also to ensure proper translation. Plaintiff's counsel contends that there is the potential for inaccurate translation, in his experience, due to unfamiliarity with specific dialects of non-English speakers. Plaintiff further argues that the IME advocate's presence as well as the daughter's presence are necessary based on evidence of improper conduct and false testimony by doctors. According to plaintiff, defendants fail to articulate how the daughter's presence will impair defendants’ ability to conduct a meaningful examination. Plaintiff provides the affidavit of Marie E. Noel, plaintiff's daughter who affirms that she will not interfere in the examinations, but that she is concerned about accurate interpretations as well as her mother's recollection of events and information.

In reply, defendants reiterate the arguments in their initial application. According to defendants, plaintiff's interests at her IME are properly protected through the presence of an IME advocate and a neutral interpreter. Defendants argue that plaintiff's opposition fails to provide a valid justification for her...

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