On Discovery

 These are some of the leftover cases from last week and maybe one or two
from this week.

§ 3126
Penalties for refusal to
comply with order or to disclose

Cobenas v Ginsburg Dev. Cos., LLC, 2010 NY Slip Op 05718 (App. Div.,
2nd, 2010)

In the absence of evidence that
the appellant willfully and contumaciously failed to appear for an examination
before trial, the Supreme Court should not have stricken his answer (see Cambry v Lincoln
, 50 AD3d 1081
; Conciatori v Port
Auth. of N.Y. & N.J.
, 46 AD3d 501
). The appropriate
remedy was to preclude the appellant from offering any testimony at trial (see Patel v DeLeon,
43 AD3d 432
; Williams v Ryder, TRS,
, 29 AD3d 784

22 NYCRR 202.17 Exchange
of medical reports in personal injury and wrongful death actions

Shichman v Yasmer, 2010 NY Slip Op 05751 (App. Div., 2nd, 2010)

The defendant here met his initial
burden of establishing his entitlement to judgment as a matter of law, which
the plaintiffs do not dispute on appeal. In opposition to the defendant's
motion, the plaintiffs principally relied on their expert's affidavit. However,
as the defendant argued and the Supreme Court found, the plaintiffs failed to
satisfy their obligations pursuant to 22 NYCRR 202.17 to serve the defendant
with a report concerning their expert's physical examination of the plaintiff.
Accordingly, the Supreme Court providently exercised its discretion in
precluding so much of the plaintiffs' expert's affidavit as was derived from
the expert's physical examination of the plaintiff (see Neils v Darmochwal, 6 AD3d 589, 590). However, under the
circumstances presented here, the Supreme Court improvidently exercised its
discretion in precluding the plaintiffs' expert's opinions in the affidavit
which were based on other evidence in the case ( id.). Based on a review of the affidavit, it is clear that the
expert's opinions derived from other sources were not "inextricably
intertwined" with his or her opinions derived from the physical
examination of the plaintiff (id.).

The expert's opinion, with regard to certain conclusions, was not dependent or
based upon the physical examination. For example, the expert's conclusion that
the defendant deviated from accepted podiatric practice by performing the
procedures at issue at the neck of the first metatarsal rather than at the head
of the first metatarsal, as proper practice allegedly demanded, was based,
inter alia, on the defendant's own deposition testimony as well as the expert's


CPLR § 3101 Scope of disclosure


There shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action, regardless of the burden of
proof, by…

(d) Trial preparation

Spohn-Konen v Town of Brookhaven, 2010 NY Slip Op 05382 (App. Div., 2nd,

While CPLR 3101(a) provides that "[t]here shall be full
disclosure of all matter material and necessary in the prosecution . . . of an
action" (see Allen v Crowell-Collier
Publ. Co., 
21 NY2d 403, 406),
"unlimited disclosure is not permitted" (Harris v Pathmark Stores, Inc, 48
AD3d 631, 632 [internal quotation marks omitted]; see
Silcox v City of New York, 
AD2d 494, 494). CPLR 3103(a) provides that a court may issue a protective order
denying, limiting, conditioning, or regulating the use of any disclosure
device, in order to prevent unreasonable annoyance, expense, embarrassment,
disadvantage, or other prejudice to the other party.


To show that additional depositions are necessary, it must be
demonstrated (1) that the representatives already deposed had insufficient
knowledge, or were otherwise inadequate, and (2) that there is a substantial
likelihood that the persons sought for depositions possess information which is
material and necessary to the prosecution of the case
(see Nazario v City of New York, 27
AD3d 439; Hayden v City of New York, 26
AD3d 262; Saxe v City of New York, 250
AD2d 751, 752; Carter v New York City Bd. of Educ., 225 AD2d 512; Zollner
v City of New York, 
204 AD2d
626, 627). Since the plaintiff failed to sustain her burden of demonstrating
these two elements, the Supreme Court properly granted the defendant's motion
for a protective order (see
Sladowski-Casolaro v World Championship Wrestling, Inc., 
47 AD3d 803, 803-804; Barone
v Great Atl. & Pac. Tea Co., 
AD2d 417, 417-418; Saxe v City of New York, 250 AD2d at 752). 


Green v William Penn Life Ins. Co. of N.Y, 2010 NY Slip Op 05327 (App. Div., 1st, 2010)


One reason it is so troubling that plaintiff was prejudiced in
this manner is that the situation defense counsel was attempting to solve with
his sudden introduction of an expert witness was of his own making.
It arose
from defense counsel's litigation decision to use Mr. Green's treating
internist, Dr. Robert Bos, on his direct case to establish that Mr. Green had
been suicidal. Plaintiff did nothing to create the predicament in which the
defense found itself. Since the burden was always on defendant to overcome the
presumption and prove that Mr. Green committed suicide, and plaintiff had no
burden on the issue, defendant cannot possibly point to plaintiff's not calling
an expert to justify defendant's initial decision not to call its own expert.


The last decision is far longer than this blurb would suggest.  It’s worth reading.

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