Tran v. New Rochelle Hosp. Med. Ctr.
| Decision Date | 21 March 2002 |
| Docket Number | 1,5607N |
| Parties | Tai Tran, et al., Plaintiffs-Respondents, v New Rochelle Hospital Medical Center, et al., Defendants-Appellants. 5607N SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT Decided on |
| Court | New York Supreme Court — Appellate Division |
Defendants appeal from an order of the Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about May 24, 2001, which granted plaintiffs' motion to compel them to produce surveillance tapes prior to the injured plaintiff's appearance for further deposition.
Gerard K. Ryan, Jr., of counsel (Kelner and Kelner, attorneys) for plaintiffs-respondents,
Samantha E. Quinn, of counsel (Schiavetti, Corgan, Soscia, DiEdwards and Nicholson, LLP, attorneys) for defendants-appellants.
John T. Buckley, J.P.
Richard W. Wallach
Alfred D. Lerner
Israel Rubin
This appeal presents for resolution a deceptively simple question: When, in the pre-trial course of a personal injury action, it appears that the defendant has recorded a surveillance of the plaintiff's daily activities with the apparent objective of undermining the latter's disability claim, is the defendant required by law to furnish the plaintiff a copy of the surveillance material prior to the plaintiff's further deposition on this issue? Defendant herein, raising the concern of "tailored" testimony, seeks the first bite at this apple deposition first and turnover afterward. Two of our sister Departments of the Appellate Division, as well as the IAS Court, have rejected this argument and directed the opposite course. We respectfully decline to adopt that procedure, and direct instead that the plaintiff's deposition proceed before delivery of the tape to him.
In December 1995, Tai Tran was a hibachi chef at the Edo Restaurant in Pelham, when he fell at the facility, then under renovation, and lacerated his left palm. The wound was treated and sutured at the emergency ward of defendant hospital. Defendant Dr. Mahoney removed the stitches two weeks later, and cleared Tai for return to work. This resumption was premature, however, and Tai's convalescence had to be extended after the wound continued to bleed. When Tai returned to full-time duties about one month after the injury, he sensed that his culinary dexterity had diminished somewhat. Then in February 1996, while trimming steak at the restaurant, Tai suffered another injury which he attributed to the weakness in his left hand caused by the earlier injury. This second injury allegedly disabled him at least until the commencement of the instant lawsuit in June 1998, wherein plaintiffs allege, inter alia, defendants' failure to diagnose and properly treat an injury to his ulnar nerve suffered at the time of the first trauma.
In a pre-trial examination in May 1999, Tai testified that his physician had cautioned against resuming work in a restaurant, suggesting that he look for other employment. Plaintiffs thereafter delayed in furnishing authorizations to defendants for review of income and employment records, which apparently had been agreed to upon the filing of note of issue in December 1999. When it was learned, in November 2000, that Tai had indeed returned to work, defendants renewed their demand for discovery, and for the right to re-examine him. Only after defendants moved to compel such discovery did plaintiffs comply to the extent of providing authorizations to obtain medical and employment records. Plaintiffs objected to discovery of income tax records, arguing that such data was readily available from employers, and opposed any further deposition as unwarranted.
It was about this time that plaintiffs learned defendants had surreptitiously conducted video surveillance of Tai. Plaintiffs moved for disclosure and copies of the surveillance materials. Defendants argued that they were not required to produce any tapes until after the injured party had submitted to further deposition, in order to prevent him from tailoring his testimony.
The IAS court granted the motion for further examination of Tai, in order to explore his present physical condition and the circumstances surrounding his return to work. There is no appeal from that order. In a separate order, which defendants are now appealing, the court granted plaintiffs' motion for disclosure of the surveillance tapes prior to the second deposition, holding that immediate production was compelled by CPLR 3101(i). We disagree.
The question of priority in the discovery of video surveillance materials which rests on a balance of protecting a plaintiff, on the one hand, from crafty manipulation of potentially devastating evidence, versus protecting the defendant from tailored testimony was addressed 10 years ago in DiMichel v South Buffalo Ry. Co. (80 N.Y.2d 184, cert denied sub nom. Poole v Consol. Rail Corp., 510 US 816). Relying upon the "substantial need" test of CPLR 3101(d)(2), the Court of Appeals held, in DiMichel, that the plaintiff should be entitled to disclosure of all video surveillance materials in the defendant's possession which the latter intends to use at trial. But to address the defendant's "tailoring" concern, the Court directed that such material be turned over "only after a plaintiff has been deposed" (at 197).
Shortly after the DiMichel decision, the Legislature enacted CPLR 3101(i), which requires full disclosure of "all portions of such material, including out-takes, rather than only those portions a party intends to use" at trial. Some authorities have viewed this 1993 enactment as rendering DiMichel a nullity (see, Rotundi v Massachusetts Mut. Life Ins. Co., 263 A.D.2d 84, 87; Shepard's even uses the signal "superseded by statute" in its citations of DiMichel). Clearly, the DiMichel decision was the impetus for the CPLR amendment, but there are no legislative memoranda indicating an intent to "supersede" the entirety of...
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