Erik Vazquez Cabrera, Plaintiff, v. LLC AND SWEENEY CONROY INC (2026)

The following papers efiled on NYSCEF were used on these motions: 53-82.

Submitted by defendants: order to show cause, affirmation in support of proposed order to show cause, affirmation of good faith, affirmation pursuant to CPLR 2217 (b), affidavit of service, affirmation in reply and in opposition to Plaintiff's cross-motion (NYSCEF Doc Nos. 53-68, 75-81).

Submitted by plaintiff: notice of cross-motion, affirmation in support of Plaintiff's cross-motion and in opposition to the Defendant's order to show cause, affirmation of service (NYSCEF Doc Nos. 70-74).

Upon the foregoing papers, having heard oral argument  ¹ , and due deliberation having been had, the within motion by Defendants and cross-motion by Plaintiff are determined as follows.

Background

It is alleged in this action that on or prior to September 29, 2023, Sweeney & Conroy, Inc., a Defendant, was hired and/or retained by Rockwell Amadeus, LLC, another Defendant, to act as the general contractor and/or construction manager for the construction, renovation, and/or alteration of the premises located at 4 Sutton Square, New York, NY 10022 (the "Property") (see NY St Cts Elec Filing [NYSCEF] Doc No. 57, complaint ¶ 28). It is alleged further that on September 29, 2023, Erik Vazquez Barera ("Plaintiff") was hired or retained and performed work on the Property and, while working, sustained injuries (see id. ¶ 35). Plaintiff later commenced this action by filing a summons and complaint, alleging that his injuries were a result of the negligence of Defendants, their agents, servants and or/employees in the ownership and operation of the Property, and that Defendants violated NY Labor Law §§ 200, 240, and 241 (see id. ¶¶ 35, 44, 48, 52).

On December 2, 2025, Plaintiff appeared virtually for the initial deposition session, which was conducted with the assistance of a Spanish interpreter (see NYSCEF Doc No. 54 ¶ 9). Defendants claim that they were unable to complete the presumptive seven hours of testimony in accordance with Uniform Rule Part 202.20-b and, therefore, the parties agreed that Plaintiff would appear for a continued deposition on a later date (see id. ¶ 9). A Compliance Conference Order was signed to that effect (see id. ¶10). Plaintiff appeared at the continued deposition on February 12, 2026, which did not start until 11:30 a.m. and again required a Spanish interpreter (see id. ¶ 11). During the deposition, Defendants claim that Plaintiff's counsel repeatedly interjected, "Objection to the form," without any valid basis, which Defendants argue disrupted the examination and eventually escalated to the point where defense counsel was forced to place a formal statement on the record criticizing the improper conduct and lack of legitimate basis for the objections (see id.). At that point, Defendants allege that Plaintiff's counsel unilaterally terminated the deposition, asserting that Defendants were not permitted to exceed seven hours of total deposition time without prior court approval, which Defendants argue deprived them of a meaningful opportunity to complete Plaintiff's deposition (see id.).

Defendants now move via an order to show cause to obtain the following relief: (1) striking Plaintiff's complaint for failure to complete his court-ordered deposition, or, in the alternative, (2) compelling Plaintiff to appear to complete his deposition, with preclusion as the penalty for noncompliance, (3) prohibiting Plaintiff's counsel from making "speaking objections" or other improper objections at Plaintiff's continued deposition, and (4) for such other and further relief as the Court deems just and proper (see NYSCEF Doc No. 54 ¶ 2).

In opposition, Plaintiff cross-moves for a protective order (1) pursuant to CPLR 3103 (a) denying Defendants' motion and denying any attempt by Defendants to continue Plaintiff's deposition beyond the depositions which have already taken place, (2) denying Defendants' motion for failure to show good cause for an enlargement of deposition time and failure to identify any outstanding concrete unaddressed topics that go to the core of the claims and defenses, (3) denying striking of the complaint, (4) confirming and enforcing the automatic stay of Plaintiff's deposition disclosure pending the final hearing on this motion, and (5) for such other and further relief as the Court deems just, proper, and equitable (see NYSCEF Doc No. 70 ¶ 3).

Defendants' Contentions

Defendants contend that the Court's Compliance Order was violated by Plaintiff since Defendants were not awarded their full and fair opportunity to question Plaintiff regarding his extensive injuries and medical treatment (see NYSCEF Doc No. 54 ¶ 15). Defendants argue that Plaintiff's Labor Law causes of action, along with Plaintiff's claimed treatment with numerous medical providers, further increased the time necessary for Defendants to fairly examine him regarding alleged injuries and treatment (see id. ¶ 16). Defendants also contend that Plaintiff's counsel repeatedly violated Uniform Rule 221.1 by making comments that appeared to coach the witness during questioning, such as statements like "if you know, you may answer," which Defendants contend has been characterized as improper coaching (see id. ¶ 18, citing Freidman v Fayenson, 41 Misc 3d 1236[A], 2013 NY Slip Op 52038[U] [Sup Ct, NY County 2013]). Therefore, Defendants argue that as a result of Plaintiff's conduct, they were deprived of a meaningful opportunity to complete Plaintiff's deposition, which frustrates the disclosure scheme mandated by CPLR 3101 and constitutes a willful failure to provide discovery (see id. ¶ 19).

Plaintiff's Contentions

In opposition, Plaintiff argues that Defendants' motion is misleading and that it seeks to violate the time limits imposed under 22 NYCRR 202.20-b (a) (2) (see NYSCEF Doc No. 70 ¶ 4). Furthermore, he contends that Defendants fail to demonstrate that the seven hours of deposition testimony was insufficient, fail to show that Plaintiff's counsel obstructed the depositions since they fail to identify any question posed by Defendants counsel that Plaintiff's counsel refused to permit Plaintiff to answer, and fail to demonstrate that significant subject matter was not addressed in the depositions (see id. ¶ 5 (b)-(c), citing Wanliss v Retina Assoc. of NY, P.C., 230 AD3d 1270 [2d Dept 2024]; ¶ 64). Instead, Plaintiff argues that Defendants' counsel simply failed to properly allocate the time of the deposition, failed to comply with NYCRR Rules for depositions, and failed to seek the Court's leave to enlarge their time for "good cause shown" (see id. ¶ 6). Plaintiff also contends that his counsel encouraged Defendants' counsel to seek the Court's leave to enlarge their time upon a showing of "good cause," and that defense counsel unilaterally terminated the examination and left the deposition earlier, without obtaining leave of the court, thereby violating 22 NYCRR 202.20-b (a) (2) (see id. ¶¶ 14-15). Finally, Plaintiff contends that permitting a third deposition would subject Plaintiff to unnecessary burden, expense, inconvenience, and prejudice, which would undermine the Uniform Rules governing depositions, and asks the court to issue a protective order under CPLR 3103, which is designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice (see id. ¶¶ 32-33).

Discussion

CPLR 3101 mandates, "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" (CPLR 3101 [a]). "A court may strike a party's pleading or impose some other sanction if the party 'refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed' " (Household Fin. Realty Corp. of New York v Cioppa, 153 AD3d 908, 910, 910 [2d Dept 2017], citing CPLR 3126). "However, '[b]efore a court invokes the drastic remedy of striking a pleading, or even of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious' " (id., citing Zakhidov v Boulevard Tenants Corp., 96 AD3d 737 [2d Dept 2012]). The Second Department has also held that the drastic relief of striking a pleading is "not warranted as a sanction for obstreperous conduct at a single deposition session" (O'Neill v Ho, 28 AD3d 626, 627 [2d Dept 2006]).

CPLR 3103 (a) allows the court to issue protective orders preventing "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice." Additionally, a court may choose to issue a protective order barring continued deposition of a party if the party moving to continue a deposition is unable to show that their motion is being made on "good cause" (Wanliss v Retina Assoc. of NY, P.C., 230 AD3d at 1271. "However, a protective order that wholly precludes otherwise relevant discovery is considered a 'drastic remedy' and should be granted only upon a clear showing of undue prejudice or abuse" (Konstantynovska v Caring Professionals, Inc., 2026 NY Slip Op. 30246[U], *2 [Sup Ct, NY County 2026], citing Koump v Smith, 25 NY2d 287, 294 [1969]).

Per 22 NYCRR 202.20-b (a) (2), "depositions shall be limited to 7 hours per deponent." "For good cause shown, the court may alter the limits on the number of depositions or the duration of an examination" (22 NYCRR 202.20-b [f] [emphasis added]). A showing of good cause can include instances "where significant subject matter was not addressed" (see Konstantynovska v Caring Professionals, Inc., 2026 NY Slip Op. 30246[U], *3). The Second Department has held that factors that may influence the Court's decision on extending deposition time past seven hours are "significant delay caused by improper conduct or obstruction by the deponent or her attorney," whether the moving party shows that "seven hours was an insufficient amount of time within which to complete the deposition under the circumstances of the case," and how long the deposition has already proceeded for (see Wanliss v Retina Assoc. of New York, P.C., 230 AD3d at 1271; see Abad v 288 Water St. Owner, LLC, 250 AD3d 680 [2d Dept 2026]).

Part 221 of the Uniform Rules governs the Conduct of Depositions, and under § 221.1 (a), "no objections shall be made at a deposition except those which, pursuant to subdivision (b), (c) or (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not interposed, and except in compliance with subdivision (e) of such rule" (Uniform Rules for Trial Cts [22 NYCRR] § 221.1 [a]). Additionally, § 221.1 (b) provides that "[e]very objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity" (Uniform Rules for Trial Cts [22 NYCRR] § 221.1 [b]).

Here, it is unlikely that there is enough evidence to show that Plaintiff willfully failed to comply with the Court's order to an extent that it warrants the striking their complaint in accordance with CPLR 3126 (see Household Fin. Realty Corp. of New York v Cioppa, 153 AD3d at 910). Plaintiff attended the deposition and his counsel permitted the deposition to proceed for almost the full seven hours, and even if there was slight obstruction through several unwarranted objections on the part of Plaintiff's counsel, the conduct at this single deposition does not warrant dismissal of the entire complaint (see O'Neill v Ho, 28 AD3d at 627 [2d Dept 2006]).

However, Defendants have presented enough evidence to show that there was obstruction to the deposition sufficient enough to constitute "good cause" that warrants the Court to permit further, limited testimony of Plaintiff (see 22 NYCRR 202.20-b [f]). Since Defendants correctly contend that they have not had a meaningful opportunity to question Plaintiff with regard to his medical history in terms of the many doctors and treatments he had, and this testimony has taken longer due to the use of a Spanish interpreter, there is a good cause showing that there is still "significant subject matter [which] was not addressed," which warrants an extension by the court of time to obtain testimony material and necessary to the case (Konstantynovska, 2026 NY Slip Op. 30246[U], *3). Additionally, since the record shows that there were several unwarranted objections on the part of Plaintiff's counsel which further lengthened the testimony (see Uniform Rules for Trial Cts [22 NYCRR] § 221.1 [b]), and the testimony did not yet exceed seven hours due to the interpreting, these circumstances lead the Court to permit continued limited deposition testimony, to ensure that there is full disclosure of material and necessary information (see Wanliss v Retina Assoc. of New York, P.C., 230 AD3d at 1271; CPLR 3101 [a]).

Labor law matters are complex and traditionally require depositions longer than one day. Further, Plaintiff has provided Defendants with fourteen additional authorizations for medical records. Defendants should be entitled to enquire of Plaintiff about the treatments rendered by the health service providers. It is noted that 22 NYCRR 202.20-b (a) (2), which sets a limit on depositions, does not include "time spent on breaks, including time taken for consultation between client and counsel, or technical issues" (Gomez v Thomas, 242 AD3d 507, 508 [1st Dept 2025]). The additional 14 hours permitted by the order subsumes interpretation but does not include breaks or attorney-client consultations.

Conclusion

Accordingly, the Court grants Defendants' motion to the extent that they are permitted to continue deposing Plaintiff for an additional 14 hours on issues deemed material and necessary to defense of the claims alleged by Plaintiff and denies the branch of Defendants' motion to strike Plaintiff's complaint. Plaintiff's counsel shall not interpose instructions to the effect "if you know, you may answer," but may interpose succinct objections permitted by law and the Uniform Rules. Furthermore, the Court grants Plaintiff's cross-motion only to the extent that it opposes striking of the complaint. The deposition of Plaintiff shall be completed by October 30, 2026.

The foregoing constitutes the Decision and Order of the Court.

FOOTNOTES

1.   Transcripts may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc 2d 335 [Sup Ct, Albany County 1997]).

Aaron D. Maslow, J.