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Craig S. Levin and SHERILYN COLEMAN-FERRER, Plaintiffs, v. City of Rochester, VINCENT PAOLOTTO and CHRISTIAN BRYANT, Defendants.
In this action for personal injuries, Defendants City of Rochester, Vincent Paolotto and Christian Bryant ("the City") move by Order To Show Cause dated August 29, 2022 for an Order vacating the Note of Issue, claiming that it was filed "prematurely" and at a time when the parties were discussing further discovery.
In conjunction with its motion to vacate, the City moves for an Order directing plaintiff Craig S. Levin ("Craig") to be present for an orthopedic independent medical examination ("IME") and for "audiology testing."
Craig opposes both motions.
Because deadlines set by the court in a "Fifth Supplemental Scheduling Order" for an IME and other discovery have long since passed, the applications are denied.
The underlying facts of the accident are set forth in the submissions and will not be repeated in full here. It is enough to say that plaintiff Craig S. Levin, on December 19, 2018, while walking in a crosswalk, collided with a City of Rochester garbage truck and sustained horrific personal injuries, including traumatic brain injury and the loss of his legs.
An action was commenced on April 22, 2019. Discovery practice followed and was interrupted by a motion in December 2019 brought by the City seeking a protective order regarding the plaintiff's discovery demands, and a plaintiff's cross-motion seeking to compel discovery (NYSCEF motions numbered 1 and 2).
Following the court's decision resolving the motions 1 and on the eve of a statewide shutdown of courts, the court issued a "Scheduling Order" that set deadlines for the completion of discovery generally of September 30, 2020 (thirty days after the completion of all depositions) and of October 15, 202 for the "Independent Medical Examination ("IME")" of the plaintiff.
Following a conference, the deadlines were adjusted in consideration of the delays caused by the shutdown. The court issued a "First Supplemental Scheduling Order" dated May 18, 2020, which extended the completion of discovery to October 30, 2020, but kept the deadline for the completion of the IME.
Again following a conference and allowing for delays again caused by the COVID outbreak, the court in a "Second Supplemental Scheduling Order" extended the deadlines for discovery, pushing out the completion of discovery to November 30, 2020, and the IME completion date to November 20, 2020.
Further delays, again attributable to COVID fears and the ordinary scheduling conflicts, occasioned the issuance of a "Third Supplemental Scheduling Order," which pushed discovery out to January 30, 2021. No reference in that Order is made to any extension of the IME, because one was not necessary, the plaintiff's deposition having been taken on September 21, 2020, leaving ample time thereafter to for the City to schedule the IME by the November 20, 2020 deadline.
In each of two subsequent "Supplemental" scheduling orders, each of which followed conferences, no reference is made to any extension of the IME
Thus, the City's time to schedule an IME expired on November 20, 2020.
Each scheduling order (six in all were issued) provided in clear and explicit terms, that "any request for an extension or amendment of this . Scheduling Order must be made in writing, on notice, and must be accompanied by a proposed . Scheduling order."
Through multiple conferences held in advance of the issuance of each revised scheduling convened to ascertain the status of discovery and following which each scheduling order was adjusted to accommodate the need for further discovery, there is no record that the City requested, verbally or in writing, an extension of time to conduct an IME.
Discovery was interrupted again by a motion filed over discovery disputes (NYSCEF motion numbered 4). The court rendered its Decision on July 15, 2021, the City appealed, and the Appellate Division, Third Department affirmed by Decision entered on March 31, 2022.
A Fifth Supplemental Scheduling Order was issued on April 12, 2022. The deadline for completion of discovery was pushed out to July 27, 2022. It also directed the Note of Issue to be filed "on or before (emphasis added) the 15th day of September 2022."
Plaintiff's counsel filed the Note of Issue on August 12, 2022, shortly after receiving an email from the City's attorney regarding his intention to schedule an IME and audiology testing. The email contains no date for the audiology testing.
The City now complains that the Note of Issue was filed "prematurely" while discovery was ongoing. Counsel for the City states that he "advised" the court at a conference on April 12, 2022, that he "did not envision seeking" an IME but that he "would never say never."
However, there is no record that counsel ever made that statement, and I have no recollection of it. If it had been made, I would have pointed out to him that the time to conduct an IME had come and gone over a year and half ago, and in any event, extensions were required to be made in writing.
The very fact that counsel would vouch for unrecorded assertions at a conference is troubling. Conferences are off the record, which means unless terms are memorialized, the content did not occur. Clearly, he is at fault — egregiously so — in not requesting an extension of time within which to conduct an IME, if that really was his intention throughout this case and if he thought it was an essential part of his client's defense. But to now attempt to relate a conversation that is not on the record and of which I (and plaintiff's counsel) have no recollection borders on deceit and at best is being used to excuse his neglect in failing to request an IME, and at worst, is a tactic intended to delay the trial.
Further, the Fifth Supplemental Scheduling Order specifically provides that the Note of Issue may be filed before September 15, 2022. It is not "premature." Counsel for the Craig asserts that in his estimation, discovery was complete, and that any conversations or communications regarding "audiology testing" and an orthopedic IME were meaningless, since the deadline to conduct an IME had passed. It is true that counsel for the City graciously allowed a deposition of a City employee beyond a deadline imposed by the scheduling order, but that courtesy does not entitle him - legally or even ethically according to the Rules of Professional Conduct - to a reciprocal courtesy, especially where the discovery sought is controversial. In any lawsuit there is a certain amount of gamesmanship, and where counsel chooses not to abide by the explicit terms of a scheduling order (in this case, by asking for extensions of discovery deadlines in writing) he must suffer the consequences.
Thus, the request to be allowed to conduct an orthopedic IME and audiology testing is denied for failure to request in writing an extension of time within which to conduct same.
Strict compliance with scheduling orders is not just this court's attitude, it is the rule set forth in the New York Rules of Court, at 22 NYCRR § 202.20-e (effective February 1, 2021), which states that:
(a) Parties shall strictly comply with discovery obligations by the dates set forth in all case scheduling orders. Applications for extension of a discovery deadline shall be made as soon as practicable and prior to the expiration of such deadline. Non-compliance with such an order may result in the imposition of an appropriate sanction against that party or for other relief pursuant to CPLR 3126.
Moreover, it is well-settled that "Supreme Court is vested with broad discretion in supervising disclosure" (Schlau v City of Buffalo, 125 AD3d 1546, 1547 [4th Dept 2015], citing Blumenthal v Tops Friendly Mkts., 182 AD2d 1105, 1106 [4th Dept 1992]).
The Appellate Division, Third Department affirmed a trial court's refusal to allow additional discovery after "patiently entertain[ing] ... motion practice and afford[ing] ... numerous adjournments and extensions which . . . protracted the litigation for more than two years" (Pierson v. North Colonie Cent. School. Dist., 74 AD3d 1652, 1653-54 [3d Dept 2010], lv denied 15 NY3d 715 ).
Failure to comply with scheduling order deadlines has been held to have constituted a
waiver of any right to further discovery (Vandashield Ltd. v Isaacson, 146 AD3d 552, 556 [1st
Even if a request for an extension had been made, the City would not be entitled to audiology testing. Craig has not put into controversy any hearing loss. "With respect to plaintiff's preaccident medical records, the waiver of the physician-patient privilege extends to the same body parts or conditions that are at issue in the action (see Geraci v National Fuel Gas Distrib. Corp., 255 AD2d 945, 946 ), but not to 'information involving unrelated illnesses and treatments' " (Schlau v City of Buffalo, 125 AD3d 1546, 1547-48 [4th Dept 2015], quoting Carter v Fantauzzo, 256 AD2d 1189, 1190 [4th Dept 1998].
The City argues that its request for audiology testing is a discovery request under CPLR 3101, not CPLR 3121, because the test result would be relevant regarding plaintiff's comparative negligence in not seeing the garbage truck. Medical records from an ear examination a year prior to the accident showed Craig with some hearing loss, and that after the accident — after he had sustained a traumatic and catastrophic brain injury - Craig also exhibited hearing loss, which, the City argues, suggests that Craig did not stop walking when the garbage truck was turning because he never heard it. The audiology testing that is sought (now more than three years after the accident) supposedly will test current hearing loss and somehow be relevant to what happened on December 19, 2018.
That contention is speculative and immaterial. It is speculative because Craig cannot recall the accident, so there is no proof as to whether he heard the truck or not. Also, the court does not need to have specialized medical knowledge to conclude that audiology testing now cannot inform the trier of fact as to whether Craig had hearing loss at the time of the accident. The City can retain an expert to review the medical records and render that opinion, if there is a basis for it, but "audiology testing" would seem to be merely a delay tactic, rather than a genuine need for relevant discovery.
Further, it is immaterial whether Craig had a hearing impairment that prevented him hearing the truck. Even if he had a hearing impairment on the day of the accident, that in no way would excuse the actions of the City's driver, who was charged with the common-law duty to "see what was there to be seen" (see Strassburg v Merchants Auto. Group, Inc., 203 AD3d 1735, 1736 [4th Dept 2022]; Miller v Silvarole Trucking Inc., - AD3d - , 2022 WL 17882390, at *1, 22 NY Slip Op 07348 [4th Dept Dec. 23, 2022]); and a "a statutory duty to use due care to avoid colliding with pedestrians" (Barbieri v. Vokoun, 72 AD3d 853, 856 [2d Dept 2010]; see Vehicle and Traffic Law § 1146; see also Bush v Kovacevic, 140 AD3d 1651, 1653 [4th Dept 2016] [holding that defendant's failure to see the plaintiff is not excused because the plaintiff was walking slowly holding a cane], citing Domanova v. State of New York, 41 AD3d 633, 634 [2d Dept 2007]).
The bottom line here, one that counsel for the City does not seem to accept, is that the court does not issue scheduling orders as merely advisory guidelines, to be ignored or adjusted as the circumstances require, without approval of the court. The language of each scheduling order is explicit for a reason. The word "Shall," used to state the date by which something has to happen, such as an IME, does not mean "maybe." The word "Must," as it applies to requests for extensions, as in "must be in writing," is not an invitation to choose some other method of making a request.
Accordingly, the motion to vacate the note of issue is DENIED. The motion to allow further discovery is DENIED in its entirety, with respect to both audiology testing and an orthopedic IME.
Dated: January 12, 2023
Rochester, New York
Hon. Christopher S. Ciaccio
Acting Supreme Court Justice
1. The City's motion was denied in nearly all respects, and the court's decision highlighted the City's failure to file an Affirmation of Good Faith, its self-created obstruction of discovery, and counsel's use of "offensive language to describe plaintiff's counsel."
Christopher S. Ciaccio, J.
Response sent, thank you
Docket No: Index No. E2019003733
Decided: January 12, 2023
Court: Supreme Court, Monroe County, New York.
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