WARD v. Caroline Drewes-Pessel, M.D., Defendant. (2024)

Order, Supreme Court, New York County (Erika M. Edwards, J.), entered July 5, 2023, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion pursuant to CPLR 2104 to vacate a stipulation of discontinuance so-ordered October 2, 2013, and to enter a default judgment against defendant Deborah B. Dyson, RPA, and denied plaintiff's motion pursuant to CPLR 3126 to sanction defendants The City of New York, The New York City Health and Hospital Corporation, and Bellevue Hospital Center (collectively, NYCHH) for their failure to produce nonparty former employees for deposition, unanimously affirmed, without costs.

Plaintiff does not provide a valid ground to vacate the so-ordered stipulation of discontinuance against Deborah B. Dyson, RPA. The parties’ stipulation stated that Dyson agrees to appear for a deposition before note of issue is filed.  However, the stipulation was executed in October 2013, when Dyson was still in the employ of NYCHH, which she left in June 2014.  More than five years later, when plaintiff's counsel requested to depose Dyson, NYCHH attempted to contact Dyson by telephone and at her last known address to no avail, even though an employer is not compelled to produce a former employee for a deposition (see Doomes v. Best Tr. Corp., 303 A.D.2d 322, 322–323, 755 N.Y.S.2d 847 [1st Dept. 2003]).  Under these circumstances, NYCHH did not violate the stipulation of discontinuance so as to warrant its vacatur and entry of a default judgment against Dyson (see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984]).

Plaintiff's contention that NYCHH violated a separate stipulation discontinuing the action against Caroline Drewes–Pessel, M.D., Marie Werner, M.D., and Allison Webb, M.D., is similarly unavailing.  These individuals were no longer employed by NYCHH at the time plaintiff sought to depose them, and, thus, NYCHH was not compelled to produce them (see Doomes v. Best Tr. Corp. at 323, 755 N.Y.S.2d 847).  Contrary to plaintiff's contention, NYCHH's stipulation to accept responsibility “for all of the acts and/or omissions of its employees ․ during the course of their employment” did not obligate NYCHH to produce these former employees, although, notably, NYCHH did make good faith efforts to contact them regarding plaintiff's deposition requests.