DECISION AND ORDER Upon the foregoing electronically submitted papers, items numbered 155 through 164 on the New York State Electronic Filing System (“NYSCEF”), the Plaintiff moves pursuant to New York Civil Practice Law and Rules §3126 and the Administrative Rules of the Unified Court System and Uniform Rules of the Trial Courts, Section 130-1.1 compelling counsel for Defendant De Risi to produce Defendant Dwight C. De Risi (“De Risi”) and non-party witness Donna Galgano (“Galgano”) for further examinations before trial and imposing sanctions against counsel for De Risi for allegedly obstructing the fair examinations of same. The Plaintiff is a former patient of De Risi, a surgical oncologist who had been employed by the Defendant ProHealth. The Complaint provides that De Risi subjected the Plaintiff to an alleged sexual assault, engaged in a course of sexually harassing behavior with several other women, and that Co-Defendant Pro-Health knew or should have known about this alleged behavior. The Amended Complaint seeks damages under Section 2962[a] of the Executive Law as well as under a theory of negligence against the Defendant ProHealth with respect to the “careless” and “reckless” hiring and retention of De Risi. The Plaintiff contends that during the deposition of De Risi and Galgano — a former ProHealth human resources employee deposed as a nonparty witness — De Risi’s counsel “constantly interrupted the examinations of the deponents with improper instructions not to answer, meritless objections, and overall contentious, abusive and unprofessional behavior.” In his opposition, De Risi contends that both he and Galgano were produced for lengthy depositions. De Risi argues that both he and Galgano were cooperative and were responsive to the Plaintiff’s examination questions, but that they were both instructed by counsel to refuse to answer “palpably improper” questions. De Risi characterizes the Plaintiff’s queries in both depositions as being replete with repetitive, argumentative, and often wholly inappropriate and objectionable lines of questioning. One example of a palpably improper line of questioning objected to by the De Risi’s counsel — and in which the witness was instructed by defense counsel not to answer — occurred when the Plaintiff’s counsel asked De Risi if he knew “who former Governor Andrew Cuomo [was]” and then queried if De Risi was aware that “ former Governor Cuomo blamed his sexual harassment on his Italian cultural upbringing.” (NYSCEF Doc No. 157, De Risi tr at 51, lines 2-17). In another exchange in the De Risi transcript, Plaintiff’s counsel inquired as to De Risi’s views on the “good old-fashioned days” as well as his feelings about the “MeToo Movement. (NYSCEF Doc No 157, De Rini tr at 290, lines 1-25 and 291, lines 19-25). Despite lines of questioning from the Plaintiff’s counsel which might by characterized as inappropriate, insulting, and ethnically biased, the deposition continued from page 52, where the remarks about former Governor Andrew Cuomo’s alleged cultural proclivities towards sexual harassment were raised, through to page 513, with significant portions of the transcript (pages 466 through 513), marked as confidential and bound separately. At the discretion of the court, a party’s failure to comply with reasonable discovery requests may result in sanctions, pursuant to CPLR §3126. “Although actions should be resolved on the merits where possible, a court may strike [a pleading] for failure to comply with court-ordered discovery where there is a clear showing that the noncompliance is willful and contumacious” (Rawlings v. Gillert, 78 AD3d 806 [2d Dept 2010]; see also CPLR 3126[3]; Moray v. City of Yonkers, 76 AD3d 618 [2d Dept 2010]; Palomba v. Schindler El. Corp., 74 AD3d 1037 [2d Dept 2010]; Rini v. Blanck, 74 AD3d 941 [2d Dept 2010]). With respect to sanctions, CPLR §3126 is an extreme and drastic penalty to be invoked only where the refusal to obey an order of disclosure pursuant to notice is clearly contumacious or deliberate. (Henry Rosenfeld, Inc. v. Bower & Gardner, 161 AD2d 374 [1st Dept 1990]). The resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR §3126 are ultimately matters to be determined within the sound discretion of the Court. (Isaacs v. Isaacs, 71 AD3d 951 [2nd Dept 2010]). Regarding depositions, the Uniform Rules for New York State Trial Courts (“the Uniform Rules”) provide for limited instances in which a deponent can be directed by counsel to not respond to a properly asked query by opposing counsel. To wit, “[a] deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person.” (22 NYCRR 221.2) Furthermore, it is well known that discovery by motion practice is generally not encouraged. However, the disputes herein are extensive and cannot be resolved amicably by stipulation and by their nature require judicial intervention. Moreover, it is evident to the Court that both De Risi and Galgano were subjected to extensive questioning under oath by Plaintiff’s counsel, and these questions were often repetitive, argumentative, irrelevant, and ultimately easily viewed as “palpably improper.” The Court concludes that the Defendants’ counsel acted appropriately when he instructed the witnesses to not answer improper questions, while continuing through lengthy and at times unnecessarily contentious depositions. Accordingly, based upon the submissions of the parties, and in view of the improper lines of questioning engaged in by Plaintiff’s counsel during both deposition, the Court, in the exercise of its discretion, DENIES motion sequence 006 in its entirety. This constitutes the Decision and Order of the Court. Dated: March 22, 2023
