Sheehan v 30 Park Place Residential LLC 2019 NY Slip Op 30026(U) January 4, 2019 Supreme Court, New York County Docket Number: /2015 Judge:

Transcription

1 Sheehan v 30 Park Place Residential LLC 2019 NY Slip Op 30026(U) January 4, 2019 Supreme Court, New York County Docket Number: /2015 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's ecourts Service. This opinion is uncorrected and not selected for official publication.

2 [* FILED: 1] NEW YORK COUNTY CLERK 01/07/ :01 PM INDEX NO /2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART x KEVIN SHEEHAN and ERIN SHEEHAN, Plaintiffs Index No / against - 30 PARK PLACE RESIDENTIAL LLC, TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, 99 CHURCH STREET INVESTORS, LLC, SILVERSTEIN PROPERTIES, INC., and SILVERSTEIN PROPERTIES, NEW YORK, DECISION AND ORDER Defendants x LUCY BILLINGS, J.S.C.: Plaintiffs seek damages for injuries Kevin Sheehan sustained when he hit his head on an exposed pipe. He underwent two physical examinations by defendants and both times was accompanied by Shawn Jerrick, an employee of nonparty IME Watchdog Advocate. See Santana v. Johnson, 154 A.D.3d 452, 452 (1st Dep't 2017); Guerra v. McBearn, 127 A.D.3d 462, 462 (1st Dep't 2017). Defendants served a subpoena duces tecum on IME Watchdog Advocate June 12, 2018, for all records relating to Kevin Sheehan's physical examinations by defendants. Plaintiffs now move to quash defendants' subpoena, C.P.L.R. 2304, and for a protective order against production of IME Watchdog Advocate's records from Sheehan's physical examinations, C.P.L.R. 3103(a), because defendants seek attorney work product and materials prepared for litigation. C.P.L.R. 3101(c) and (d) (2). shcehan.j of 8

3 [* FILED: 2] NEW YORK COUNTY CLERK 01/07/ :01 PM INDEX NO /2015 I. APPLICABLE PRIVILEGES AND PROTECTIONS C.P.L.R. 3101(b)-(d) establishes three categories of materials protected from disclosure: privileged material, attorney work product, and material prepared in anticipation of litigation. Forman v. Henkin, 30 N.Y.3d 656, (2018). The protection of privileged material and attorney work product from disclosure is absolute, C.P.L.R. 3101(b) and (c), but materials prepared in anticipation of litigation are subject to disclosure upon a showing of substantial need for the disclosure and inability to obtain it by other means without undue hardship. C.P.L.R. 3101(d) (2); Forman v. Henkin, 30 N.Y.3d at Plaintiffs, as proponents of protection, bear the burden to establish that the documents sought are covered by a protection. Forman v. Henkin, 30 N.Y.3d at ; Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377 (1991); Ambac Assur. Corp. v. DLJ Mtge. Capital, Inc., 92 A.D.3d ~51, 452 (1st Dep't 2012); 148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 A.D.3d 486, 487 (1st Dep' t 2009). Attorney work product derives from attorneys' professional skills and judgment; includes the attorneys' analysis of legal principles, their legal opinions, and their strategic decisions; and is narrowly construed. Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N. Y. 2d at 377; Venture v. Preferred Mut. Ins. Co., 153 A.D.3d 1155, 1159 (1st Dep't 2017); Matter of New York City Asbestos Litig., 109 A.D.3d 7, 12 (1st Dep't 2013); Fewer v. GFI Group Inc., 78 A.D.3d 412, 413 (1st Dep't 2010). The work sheehan.j of 8

4 [* FILED: 3] NEW YORK COUNTY CLERK 01/07/ :01 PM INDEX NO /2015 ' product protection prevents disclosure of factual information and observations only by an attorney, as they may be clothed with the attorney's mental impressions and personal beliefs. Beach v. Touradji Capital Mgt.. LP, 99 A.D.3d 167, 170 (1st Dep't 2012); Netherby Ltd. v. G.V. Trademark Invs.. Ltd., 261 A.D.2d 161, 161 (1st Dep't 1999); Eisic Trading Corp. v. Somerset Marine. Inc., 212 A.D.2d 451, 451 (1st Dep't 1995). The work product protection may extend to an attorney's information, impressions, or observations conveyed to experts retained as consultants to assist in analyzing or preparing plaintiffs' action. Beach v. Touradji Capital Mgt.. LP, 99 A.D.3d at 170; Hudson Ins. Co. v. Oppenheim, 72 A.D.3d 489, 490 (1st Dep't 2010). II. PLAINTIFFS' MOTION BASED ON ATTORNEY WORK PRODUCT Plaintiffs do not claim that Jerrick is an attorney or was serving as plaintiffs' attorney during Kevin Sheehan's physical examinations. Although Jerrick was acting as an agent of plaintiffs' attorney, no attorney representing plaintiffs attended the examinations. Thus any records prepared of the examinations do not derive from an attorney's professional judgment or involve an attorney's strategic legal analysis and opinion and therefore are not protected by C.P.L.R. 3101(c). Beach v. Touradji Capital Mgt.. LP, 99 A.D.3d at ; Venture v. Preferred Mut. Ins. Co., 153 A.D.3d at 1159; Netherby Ltd. v. G.V. Trademark Invs., Ltd., 261 A.D.2d at 161; Eisic Trading Corp. v. somerset Marine. Inc., 212 A.D.2d at 451. Although the work product protection may extend to experts shcehan.j of 8

5 [* FILED: 4] NEW YORK COUNTY CLERK 01/07/ :01 PM INDEX NO /2015 retained as consultants to assist in analyzing or preparing plaintiffs' action, plaintiffs do not claim that Jerrick or!me Watchdog Advocate was or will be retained as an expert. Plaintiffs admit that Jerrick was retained to observe what transpired at the examinations and relay this information to plaintiffs' attorneys. Aff. of Douglas J. Fanning ~~ 10, 24. Even if Jerrick or!me Watchdog Advocate was retained as an expert, the protection still is limited to the facts, observations, or impressions the attorney conveys to the expert. Beach v. Touradji Capital Mgt., LP, 99 A.D.3d at 170; Hudson Ins. Co. v. Oppenheim, 72 A.D.3d at 490. Plaintiffs do not claim that Jerrick's observations, notes, or reports from the examinations include any facts, observations, or impressions conveyed by plaintiffs' attorneys, nor would Jerrick's records likely include any such information, since no attorney for plaintiffs attended the examinations. For these reasons as well, the attorney work product protection does not apply. Beach v. Touradji Capital Mgt., LP, 99 A.D.3d at 170; Hudson Ins. Co. v. Oppenheim, 72 A.D.3d at 490. III. PLAINTIFFS' MOTION BASED ON MATERIAL PREPARED FOR LITIGATION Jerrick's records, notes, and reports from the physical examinations are protected, however, as materials prepared for this litigation and in anticipation of the trial. C.P.L.R. 3101(d) (2) 's very terms protect materials prepared in anticipation of trial for the party by the party's agent. Plaintiffs' attorney retained IME Watchdog Advocate to accompany sheehan.j of 8

6 [* FILED: 5] NEW YORK COUNTY CLERK 01/07/ :01 PM INDEX NO /2015 ' plaintiffs to the physical examinations, observe the examinations, take notes of what transpired, and prepare reports for plaintiffs' attorney to assist in the prosecution of plaintiffs' action. These records, notes, and reports from the examinations thus fall under C.P.L.R. 3101(d) (2) 's protection. Beach v. Touradji Capital Mgt.. LP, 99 A.D.3d at 170; MBIA Ins. Corp. v. Countrywide Home Loans. Inc., 93 A.D.3d 574, 574 (1st Dep' t 2012). C.P.L.R. 3101(d) (2) 's protection is not absolute, however, requiring plaintiffs to disclose these records, notes, and reports if defendants show a substantial need for the materials and their inability to obtain equivalent materials without undue hardship. Forman v. Henkin, 30 N.Y.3d at ; Beach v. Touradji Capital Mgt.. LP, 99 A.D.3d at 171; Drizin v. Sprint Corp., 3 A.D.3d 388, 390 (1st Dep't 2004). Defendants' request for disclosure from a nonparty, however, does not require any showing of other "special circumstances." Kapon v. Koch, 23 N.Y.3d 32, 36 (2014). Defendants maintain that they need Jerrick's records, notes, and reports from the physical examinations to prepare adequately for Jerrick's potential testimony at trial, which may attempt to impeach defendants' expert witnesses who conducted the examinations. Plaintiffs admit that they may call Jerrick to testify at trial to rebut any inaccurate testimony from defendants' examining physicians. Fanning Aff. ~ 24. Jerrick's records, notes, and reports may allow defendants to impeach shcchan.j of 8

7 [* FILED: 6] NEW YORK COUNTY CLERK 01/07/ :01 PM INDEX NO /2015 Jerrick's rebuttal testimony if plaintiffs attempt to impeach defendants' examining physicians with his testimony, thus demonstrating defendants' substantial need to review his records, notes, and reports in advance of the trial. Beach v. Touradji Capital Mgt.. LP, 99 A.D.3d at 171; Drizin v. Sprint Corp., 3 A.D.3d at 390; Sands v. News Am. Publ., 161 A.D.2d 30, 39 (1st Dep't 1990). Defendants also establish their inability to obtain the substantial equivalent of Jerrick's records~ notes, and reports, as only Jerrick and!me Watchdog Advocate are in possession of these materials or anything equivalent. Although plaintiffs maintain that defendants may gain insight into Jerrick's materials from the examining physicians' own records or notes, they are not a substantial equivalent. They do not represent Jerrick's observations during the examinations and thus would not reveal any potential inconsistencies between his observations during the examinations and his testimony at trial. Defendants therefore establish both their substantial need for the materials and their inability to obtain a substantial equivalent of the materials by any other means, entitling defendants to production of Jerrick's records, notes, and reports. Beach v. Touradji Capital Mgt.~ LP, 99 A.D.3d at 171; Drizin v. Sprint Corp., 3 A.D.3d at 390; Sands v. News Am. Publ., 161 A.D.2d at 39. IV. CONCLUSION For all the reasons explained above, the court denies plaintiffs' motion to quash and for a protective order against shcchan.j of 8

8 [* FILED: 7] NEW YORK COUNTY CLERK 01/07/ :01 PM INDEX NO / defendants' subpoena duces tecum served on IME Watchdog Advocate. C.P.L.R. 2304, 3103(a). DATED: January 4, 2019 LUCY BILLINGS, J.S.C. LUCY BILUNGS.J.S.C. sheehan.j of 8