| M.C. v Sylvia Marsh Equities, Inc. |
| 2013 NY Slip Op 00888 [103 AD3d 676] |
| February 13, 2013 |
| Appellate Division, Second Department |
| M.C., Respondent, v Sylvia Marsh Equities, Inc.,Appellant. |
—[*1] Steven Wildstein, P.C., Great Neck, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County(Vaughan, J.), dated September 28, 2011, as denied those branches of its motion whichwere to compel the plaintiff to appear for a supplemental deposition on the issue of herparticipation in the witness protection program and to respond to its notice to producedated January 6, 2011.
Ordered that the order is modified, on the facts and in the exercise of discretion, (1)by deleting the provision thereof denying that branch of the defendant's motion whichwas to compel the plaintiff to appear for a supplemental deposition on the issue of herparticipation in the witness protection program, and substituting therefor a provisiongranting that branch of the motion to the extent of directing the plaintiff to appear for asupplemental deposition concerning the facts and circumstances surrounding her entryinto the witness protection program, (2) by deleting the provision thereof denying thosebranches of the defendant's motion which were to compel the plaintiff to respond to itsnotice to produce dated January 6, 2011, with respect to demands numbered 1, 10, 13through 18, 21, and 22, and substituting therefor provisions granting those branches ofthe motion, and (3) by adding thereto a provision directing that the transcript of thesupplemental deposition and any information disclosed at the supplemental deposition,and any records and information disclosed through the plaintiff's responses to the noticeto produce dated January 6, 2011, are not to be disclosed to anyone other than counsel ofrecord and, in the event that these documents and this information are included as part ofthe Supreme Court's file, the papers containing these documents and this information areto be filed under seal; as so modified, the order is affirmed insofar as appealed from, withcosts to the defendant.
On May 5, 2008, the plaintiff allegedly was injured when the bathroom ceiling in herapartment collapsed. The premises on which her apartment was located were owned bythe defendant. The plaintiff commenced this action against the defendant to recoverdamages for personal injuries. According to her bills of particulars, the plaintiff sustainedinjuries to her neck, back, and right knee, which required surgery and caused a loss ofenjoyment of life.
During a deposition of the plaintiff, she refused to answer certain questions on theground that she was a participant in the federal witness protection program. Followingthat deposition, the defendant served the plaintiff with a notice to produce dated January6, 2011, which [*2]sought, among other things, anauthorization for the release of records maintained by the Witness Security Unit Office ofEnforcement Operations of the United States Department of Justice (hereinafter theWitness Security Office) with respect to the plaintiff's participation in the witnessprotection program, copies of records pertaining to psychological testing and physicalevaluations of the plaintiff which were obtained by the Witness Security Office, and theresults of random drug and alcohol testing. The plaintiff refused to respond to that noticeto produce.
The defendant moved, inter alia, to compel the plaintiff to appear for a supplementaldeposition on the issue of her participation in the witness protection program and torespond to its notice to produce dated January 6, 2011. The Supreme Court denied thosebranches of the defendant's motion, and the defendant appeals.
CPLR 3101 (a) requires, in pertinent part, "full disclosure of all matter material andnecessary in the prosecution or defense of an action." Material and necessary informationis that which is required to be disclosed because it bears upon the controversy at issueand will assist the requesting party in preparing for trial (see Allen v Crowell-CollierPubl. Co., 21 NY2d 403, 406 [1968]; Kooper v Kooper, 74 AD3d 6, 10 [2010]). Courts are tointerpret discovery requests liberally in favor of disclosure (see Kavanagh v OgdenAllied Maintenance Corp., 92 NY2d 952, 954 [1998]; Ural v Encompass Ins. Co. ofAm., 97 AD3d 562, 566 [2012]; Riverside Capital Advisors v First SecuredCapital Corp., 292 AD2d 515, 515 [2002]).
The Supreme Court improvidently exercised its discretion in denying that branch ofthe defendant's motion which was to compel the plaintiff to appear for a supplementaldeposition on the issue of her participation in the witness protection program. The factsand circumstances surrounding the plaintiff's entry into the witness protection programare material since the plaintiff has claimed that she cannot answer certain depositionquestions as a result of her participation in that program (see Hoffman v ConnecticutNatl. Bank, 120 FRD 15, 16 [D Conn 1988]). A participant in the witness protectionprogram cannot use his or her entry into the program as a means "to shield him [or her]from . . . the adverse effects of the litigation he [or she] has initiated,"especially where the subsequent action is not related to the criminal action whichtriggered the need for the party's participation in the witness protection program in thefirst instance (id. at 17). Further, in this case, the information may bear on theplaintiff's credibility in light of the fact she provided differing explanations at herdepositions as to why she has two social security numbers. Accordingly, the SupremeCourt should have granted that branch of the defendant's motion to the extent of directingthe plaintiff to appear for a supplemental deposition concerning the facts andcircumstances surrounding her entry into the witness protection program. The transcriptof the supplemental deposition and any information disclosed at that deposition are onlyto be disclosed to counsel of record and, if the transcript or any such informationbecomes part of the court's file, they are to be filed under seal (see Hoffman vConnecticut Natl. Bank, 120 FRD at 16).
With respect to the defendant's notice to produce dated January 6, 2011, the SupremeCourt improvidently exercised its discretion in denying those branches of the defendant'smotion which were to compel the plaintiff to respond to those demands which sought anauthorization for the release of records maintained by the Witness Security Office withrespect to the plaintiff's participation in the witness protection program and informationabout the plaintiff's physical and mental condition. In order to comply with "the liberaldiscovery provisions of the CPLR," a party who affirmatively places his or her medicalcondition into issue "must provide duly executed and acknowledged writtenauthorizations for the release of pertinent medical records" (DeLouise v S.K.I. Wholesale BeerCorp., 79 AD3d 1092, 1093 [2010] [internal quotation marks omitted]; see Diamond v Ross OrthopedicGroup, P.C., 41 AD3d 768, 769 [2007]; Vanalst v City of New York,276 AD2d 789 [2000]). Moreover, the defense is entitled to review records showing "thenature and severity of the plaintiff's prior medical conditions [which] may have an impactupon the amount of damages, if any, recoverable for a claim of loss of enjoyment of life"(Amoroso v City of NewYork, 66 AD3d 618, 618 [2009]).
Here, in light of the plaintiff's allegations that her neck, back, and right knee wereinjured, the plaintiff's medical records are material since she has affirmatively placed hermedical condition in controversy (see Diamond v Ross Orthopedic Group, P.C.,41 AD3d at 768). [*3]Specifically, the plaintiff's recordsreflecting her medical history, preexisting physical conditions, and the recordsmaintained by the Witness Security Office reflecting her physical condition, are materialand necessary to the issue of damages (see DeLouise v S.K.I. Wholesale BeerCorp., 79 AD3d at 1093; Diamond v Ross Orthopedic Group, P.C., 41 AD3dat 769; Vanalst v City of New York, 276 AD2d 789 [2000]). Further, due to theplaintiff's allegation that her physical injuries caused a loss of enjoyment of life, medicalrecords which reflect the plaintiff's mental condition prior to the date that she allegedlysustained the injuries which are the subject of this action are material and necessary tothe issue of damages recoverable on that claim (see Rothstein v Huh, 60 AD3d 839, 839-840 [2009]).Accordingly, the Supreme Court should have granted those branches of the defendant'smotion which were to compel the plaintiff to respond to its notice to produce datedJanuary 6, 2011, with respect to demands numbered 1, 10, 13 through 18, 21, and 22,which, inter alia, relate to the injuries she claims to have sustained. Again, any recordsand information disclosed through the plaintiff's responses to these demands are only tobe disclosed to counsel of record and, if they become part of the court's file, they are tobe filed under seal (see Hoffman v Connecticut Natl. Bank, 120 FRD at 16).Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.