The following e-filed documents, listed by NYSCEF document number (Motion 004) 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 146, 147, 148, 149, 150, 151 were read on this motion for DISCOVERY DECISION ORDER ON MOTION Upon the foregoing documents, it is ordered that this motion is granted in part and denied in part. In this labor law action, defendant 520 Madison Owners LLC moves, pursuant to CPLR 3124, to compel plaintiff to answer questions asked by defendant at plaintiff’s deposition and to compel plaintiff to provide complete supplemental responses to defendant’s post-deposition demands dated April 3, 2019, or, in the alternative, pursuant to CPLR 3126, to preclude plaintiff from offering evidence at the trial of this matter in connection with defendant’s post-deposition demands dated April 3, 2019, or to dismiss the complaint for plaintiff’s failure to respond completely to defendant’s post-deposition demands. In opposition, plaintiff argues that he has provided all relevant, material and necessary post-deposition discovery, and that he has answered all relevant and proper questions. Plaintiff argues that the questions to which defendant seeks answers — questions about an arrest not related to the accident about which plaintiff sues — are not discoverable, and that plaintiff was properly instructed not to answer such questions. Defendant questioned plaintiff at his deposition concerning a prior arrest. The questions concerned, among other things, where plaintiff’s arrest took place, why plaintiff was arrested, what plaintiff’s understanding was of the supposed basis for his arrest, and whether the arrest occurred late at night. In response to the questions asked regarding plaintiff’s arrest, plaintiff’s counsel instructed him not to answer on the ground that the responses could be viewed as prejudicial to the plaintiff. Defendant served post-deposition demands dated April 3, 2019. Defendant’s post-deposition demands included demands for authorizations for the release of plaintiff’s medical records from specific medical providers and demands for an authorization for the release of plaintiff’s application to become a United States citizen, as well as the attorney/law firm that assisted plaintiff in becoming a United States citizen. Plaintiff objected to the medical demands, claiming plaintiff was not familiar with the providers and did not treat with a specific provider for the injuries claimed in the complaint. Plaintiff objected that the questions directed at his citizenship application process were palpably improper and would not result in the production of admissible evidence. CPLR 3101 requires full disclosure of all matter material and necessary in the prosecution or defense of an action. The phrase “material and necessary” 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 Publishing Co., 21 NY2d 403). The Court of Appeals has made plain that evidence of a prior crime is relevant to the assessment of a party’s credibility (People v. Bennette, 56 NY2d 142). Moreover, “as long as the information is sought in good faith for possible use as evidence-in-chief or in the rebuttal or for cross-examination, it should be considered evidence material in the prosecution or defense” (Allen v. Crowell-Collier Pub. Co., 21 NY2d 403). Inasmuch as defendant intends to use the answers provided by plaintiff for possible use as evidence-in-chief, or in the rebuttal or for cross-examination, defendant is entitled to plaintiff’s answers. Defendant is permitted to inquire as to the actions of plaintiff and other circumstances that led to his conviction for disorderly conduct and criminal impersonation. Plaintiff’s concerns about the potential for prejudice should not be treated lightly. However, “[t]he court must also consider the potential prejudice to the fact-finding process of denying the jury access to probative, perhaps even crucial evidence of the [party's] credibility” (People v. Bennette, 56 NY2d at 147). The very existence of plaintiff’s conviction may affect how his testimony is perceived by a jury in the instant action. Even more, a recounting of the particular circumstances surrounding the occurrence could also affect how plaintiff’s testimony is perceived by a jury — and thus may be crucial to the defense of the action. Plaintiff’s conviction for disorderly conduct and criminal impersonation certainly is not irrelevant to the question of his veracity and defendant is entitled to utilize this information in its defense of this action. But the Court of Appeals has authorized an even broader inquiry. “The court may permit further questioning for the purpose of determining, at least in general terms, what conduct gave rise to the conviction” (id. at 149). CPLR 4513 specifically permits proof of the fact that a witness was convicted of a crime. Pursuant to this statute, “the conviction may be proved, for the purpose of affecting the weight of his testimony, either by cross-examination, upon which he shall be required to answer any relevant question, or by the record” (id.) (emphasis added). Of note, according to the statute, “[t]the party’s cross-examining is not concluded by such person’s answer” (id.). Although it is a trial evidence statute, rather than a discovery statute, the language of CPLR 4513 demonstrates the breadth of the inquiry that should be permitted at deposition in this action. That is, plaintiff needs to respond not merely to questions about the identity of the particular crime of which he was convicted, but also to questions about his actions at the time, the actions of others at that time (including any statements made in his presence or presented to him in writing), the date, time and location of the occurrence, the presence of others, and any other questions relating to proofs of the crime or crimes involved. Until he does so fully, plaintiff’s deposition is not considered complete (see Guarisco v. E.J. Milk Farms, 90 Misc 2d 81). Defendant also seeks authorizations for the release of plaintiff’s medical records from specific medical providers. “It is well-settled that the waiver of the physician-patient privilege made by a party who affirmatively asserts a physical condition in its pleading does not permit discovery of information involving unrelated illnesses and treatments” (Mcleod v. Metropolitan Transportation Authority, 47 Misc 3d 1219 [A]). However, “determining whether the physician-patient privilege is waived with respect to the medical records of a particular provider is a function of (1) the condition affirmatively placed at issue by the patient-party; and (2) whether the records sought are related to the condition affirmatively placed at issue” (id.). Thus, the scope of the waiver can vary depending on how broadly or narrowly the “condition at issue” is defined, and how broadly or narrowly “relatedness” to the “condition at issue” is defined (id). Plaintiff alleges that he remains totally disabled and cannot return to work — after sustaining a fall at work — and that his enjoyment of life has been permanently impaired, impeded and/or depreciated. Plaintiff’s claims that he remains totally disabled and that his enjoyment of life has depreciated places his medical history at issue in the current action (see Vanalst v. City of New York, 276 AD2d 789 [holding that records of prior treatment or injury to a body part that was not at issue in the lawsuit were discoverable because the plaintiff asserted a claim for loss of enjoyment of life for the injuries at issue]). “By pleading loss of enjoyment of life or future lost wages or lost earning capacity based on permanent, disabling physical injuries, the plaintiff would be deemed to have waived the physician-patient privilege for his or her entire medical history” (Mcleod v. Metropolitan Transportation Authority, 47 Misc 3d 1219 [A]). The information defendant seeks is critical to its defense of this action, as it attempts to limit its exposure for monetary damages. The nature and severity of plaintiff’s previous injuries may have an impact upon the amount of damages, if any, recoverable for plaintiff’s alleged loss of enjoyment of life from injuries sustained from his alleged fall at work. Defendant’s request for plaintiff’s application to become a United States citizen and for the information of the attorney/law firm that aided in plaintiff’s application process is one that is overbroad and unduly burdensome. Defendant has failed to offer substantive arguments regarding the materiality and relevancy of this request to the issues at dispute in the current action. In any event, courts have held that, where a plaintiff has suffered serious injuries which prevent him from returning to work, his immigration status is not relevant to the litigation (see Angamarca v. New York City Partnership Hous. Dev. Fund, Ins., 87 AD3d 206). Accordingly, it is ORDERED that the portion of defendant’s motion seeking to compel plaintiff to answer questions asked by defendant at his deposition on February 26, 2019 regarding his criminal conviction for criminal impersonation and disorderly conduct is granted; and it is further ORDERED that, within 45 days of the entry of this order, plaintiff’s counsel shall present plaintiff for a limited 2 hour deposition to answer the questions regarding plaintiff’s arrest noted in defendant’s motion at a mutually agreeable date and time at a mutually agreeable location in New York City, Westchester County, or Nassau County; and it is further ORDERED that the portion of defendant’s motion seeking to compel plaintiff to provide complete supplemental responses to defendant’s post-deposition demands dated April 3, 2019, is granted, to the extent that, within 20 days of the entry of this order, plaintiff is directed to provide complete supplemental responses to defendant’s post-deposition demand numbers 3, 4, 8, and 9, and is otherwise denied; and it is further ORDERED that counsel for the parties are directed to confer with one another by telephonic or electronic means, within 30 days of the completion of plaintiff’s limited deposition, and promptly thereafter to send a joint e-mail message to the clerk of Part 43 advising whether a status conference is necessary to schedule additional discovery for completion upon an expedited basis. This constitutes the Decision and Order of the court. Dated: June 12, 2020
