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Hildebrandt v. Stephan

Supreme Court, Erie County

December 16, 2013

Denise Hildebrandt, Plaintiff
v.
William H. Stephan, M.D. and WILLIAM H. STEPHAN, M.D., P.C., Defendants

DENISE HILDEBRANDT (n/k/a DENISE WRIGHT) Self-Represented Plaintiff.

GIBSON, MCASKILL & CROSBY Attorneys for Defendants Kathleen M. Sweet, Esq., of Counsel.

JOHN M. CURRAN, J.

Plaintiff has moved for an order compelling defendant to appear for a "an additional 4-hour session" of his deposition. Defendant opposes this request essentially on the grounds that plaintiff has waived any further deposition session by expressly consenting to the conclusion of the deposition.

At the initial oral argument on the motion, the Court asked for a complete copy of the defendant's deposition transcript. Following its review of that transcript, the Court interposed certain questions to the parties concerning plaintiff's complaints in her motion papers that defense counsel improperly impeded her ability to conduct the deposition. Defendant objected to the Court's inquiry claiming that the only issue presented by the motion was whether plaintiff had concluded the deposition session or was otherwise entitled to another four-hour session. The Court overruled this objection because plaintiff's motion papers contain numerous complaints that defense counsel "greatly" interfered with the deposition and "objected to virtually every question essentially preventing any meaningful deposition" (Plaintiff's Aff. ¶'s 1, 20 & 23).

Another Four-Hour Session

At the court appearance conducted on April 11, 2013, plaintiff requested that she be afforded two or more four-hour sessions on non-consecutive days to depose the defendant. Plaintiff based this request on her health issues. The Court inquired whether the defendant had any objection. Defense counsel indicated that they could not agree. The Court advised plaintiff that depositions were typically conducted from 9:30 a.m. to 4:30 p.m. on a day-to-day basis. The Court indicated to plaintiff that, if she wished to change this usual practice, she would have to seek an order.

Plaintiff proceeded with the defendant's deposition on April 25, 2013, without seeking any such order. At page 109 of the transcript provided to the Court, plaintiff indicated that she did not have any further questions and tendered the witness to defense counsel. There is no indication in the transcript that plaintiff had any further questions for the defendant. Accordingly, plaintiff consented to the conclusion of the deposition and plaintiff's request to conduct an additional four-hour session of the defendant's deposition must be denied.

Deposition Interference

The scope of disclosure is broadly defined by CPLR 3101 (a): "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof...." [1] (emphasis added). This language is "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406-407 [1968], quoted in Rawlins v. St. Joseph's Hosp. Health Ctr., 108 A.D.3d 1191, 1192 [4th Dept 2013]). "[I]t is important to note that New York has long favored open and far-reaching pretrial discovery. To a large extent, New York's open disclosure policy was intended to mark an end to the presentation of totally unexpected evidence and to substitute honesty and forthrightness for gamesmanship" (DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184, 195, rearg denied Poole v. Consol. Rail Corp., 81 N.Y.2d 835 [1993], cert denied 518 U.S. 816 [1993]; see also Kavanagh v. Ogden Allied Maint. Corp., 92 N.Y.2d 952, 954 [1998]; Giles v. Yi, 105 A.D.3d 1313 [4th Dept 2013]). The Court of Appeals has held that "pretrial discovery is to be encouraged" (Hoenig v. Westphal, 52 N.Y.2d 605, 608 [1981]).

CPLR 3113 provides for the manner in which depositions are conducted while CPLR 3115 addresses objections to questions and answers at depositions. Neither section limits the broad scope of disclosure authorized by CPLR 3101 (a) (see Kavanaugh, 92 N.Y.2d at 953-954). The most pertinent parts of these statutes are that objections are to be noted by the stenographer, the deposition is to proceed, objections to the form are ordinarily waived unless raised at the deposition, and objections to admissibility are typically not waived by failing to raise them at the deposition. "The scope of an examination or deposition is broader than what may be admissible at trial" (White v. Martins, 100 A.D.2d 805 [1st Dept 1984]; see Johnson v. New York City Health & Hospitals Corp., 49 A.D.2d 234, 237 [2d Dept 1975).

Instructions not to answer questions at depositions are not addressed by the CPLR. Such instructions are conceptually contrary to CPLR 3113 (c) which directs that depositions "shall proceed as permitted in the trial of an action in open court." The courts have nevertheless recognized that there may be rare occasions when a party witness may be instructed by his or her counsel not to answer a deposition question, subject to a motion to compel and/or for a protective order. The Appellate Division has long held:

We do again, however, call to the attention of the Bench and Bar that in an examination before trial unless a question is clearly violative of the witnesses's constitutional rights or of some privilege recognized in law, or is palpably irrelevant, questions should be freely permitted and answered, since all objections other than as to form are preserved for trial and may be raised at that time.

(Freedco Prods., Inc. v. New York Tel. Co., 47 A.D.2d 654 [2d Dept 1975], see also Watson v. State, 53 A.D.2d 798 [3d Dept 1976]; White, 100 A.D.2d at 805; Humiston v. Grose, 144 A.D.2d 907 [4th Dept 1988]; Dibble v. Conrail, 181 A.D.2d 1040 [4th ...


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