Defendant's motion for a further deposition of claimant, conducted in compliance with the Uniform Rules for the Conduct of Depositions, is granted in part and denied in part where claimant's attorney's directions to witness not to answer certain questions were not based upon grounds set forth in the Uniform Rules for the Conduct of Depositions or upon constitutional rights, privilege, or palpable irrelevance.
|Claimant short name:||ABAYEV|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claim number(s):||128365, 128611|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||MICHAEL STIEGLITZ, ESQ.|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Paul F. Cagino, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 18, 2018|
|See also (multicaptioned case)|
Defendant moves for a protective order pursuant to CPLR 3103 (a) and the Uniform Rules for the Conduct of Depositions in this personal injury action alleging that the pedestrian-claimant was struck by an automobile on a state-owned highway due to defendant's negligence. In particular, defendant asks that claimant appear for a further deposition and that claimant's "counsel be precluded" from engaging in "speaking objections" and from directing claimant not to answer deposition questions "unless they fall within the limited guidelines of 22 NYCRR 221 and CPLR 3115." Claimant opposes the defendant's motion.
The claim alleges that "on January 21, 2016, at approximately 11:15 p.m., [claimant] was a lawful pedestrian on the shoulder of . . . New York State Route 44/55 . . . [when he] was struck by a vehicle" allegedly due to defendant's negligence.
Claimant suffered significant injuries as a result of being struck by the motor vehicle, including a traumatic brain injury, concussion, loss of consciousness and multiple fractures.
Defendant's answer alleges, among other things, that claimant's injuries and damages "are attributable, in whole or in part, to the comparative negligence or culpable conduct of the claimant."
Defendant's attorney asserts in his supporting affirmation, without contradiction, that:
"At approximately 11:00 p.m., the claimant left the Rocking Horse Ranch alone, wearing dark cloths [sic], and he walked in the pitch dark with traffic along route 44/55. The claimant walked about a mile when he was struck by a non-state vehicle while walking in the roadway.
After the incident the claimant was unconscious and taken by ambulance to a hospital affiliated with the Westchester Medical Center. At the Westchester Medical Center urine samples were obtained. At 06:30 a.m. on January 22, 2016, the claimant's urine sample tested positive for both opiate and marijuana (THC).
At approximately 10:00 a.m. on January 22, 2016, the claimant again tested positive for both opiate and marijuana."
Claimant was deposed by defendant on April 5, 2018. Defendant states that "[d]uring the deposition claimant's counsel made numerous speaking objections and on several occasions directed his witness not to answer relevant questions."
Protective orders are governed by CPLR 3103 which provides at relevant part as follows:
"(a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."
CPLR 3115 governs the questioning of witnesses at a deposition, generally, and the Chief Administrative Judge of the Courts has adopted Uniform Rules for the Conduct of Depositions as follows:
"Section 221.1 Objections at depositions
(a) Objections in general. 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. All objections made at a deposition shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to article 31 of the CPLR.
(b) Speaking objections restricted. Every 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. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning.
Section 221.2 Refusal to answer when objection is made
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. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefor. If the deponent does not answer a question, the examining party shall have the right to complete the remainder of the deposition.
Section 221.3 Communication with the deponent
An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly."
The above provisions reduce to court rules the applicable case law: "In conducting depositions, questions should be freely permitted 'unless a question is clearly violative of a witness' constitutional rights, or of some privilege recognized in law, or is palpably irrelevant'" (Barber v BPS Venture, Inc., 31 AD3d 897, 897 [3d Dept 2006], quoting Watson v State of New York, 53 AD2d 798, 799 ; see Kaye v Tee Bar Corp., 151 AD3d 1530, 1531 [3d Dept 2017]).
So-called "speaking objections" were defined by the Advisory Committee on Civil Practice (2006 Report of the Advisory Comm. on Civil Practice, p. 50) as "an objection accompanied by, or made in the form of, speeches which exceed what is necessary to preserve an objection . . . At a minimum, these speaking objections interfere with the smooth flow of the deposition and cause delay. At times, the speeches have the effect of signaling to the witness how a question ought to be answered and, indeed, that is often their purpose" (see McKinney's Practice Commentaries to CPLR 3115 [a], C3115:1 No Waiver of Objections Withheld at Deposition [Professor Patrick M. Connors 2018]).
With these principles in mind, the Court has carefully reviewed the relevant portions of the transcript of the claimant's deposition set forth in defendant's application.
Defendant argues that with respect to questions as to whether: Claimant had any knowledge as to why his blood tested positive for opiates and marijuana after the accident; whether claimant had "ever [walked] the trails in [the] Rocking Horse Ranch up in the area where the lake appears on the map" and whether claimant was ever arrested for drug possession or use, claimant's counsel made multiple "'speaking objections,' which were not based on constitutional rights, privilege, or palpable irrelevance" (O'Neill v Ho, 28 AD3d 626, 627 [2d Dept 2006]; see Lieblich v Saint Peter's Hosp. of City of Albany, 112 AD3d 1202 [3d Dept 2013]). With respect to the positive opiate/marijuana test hospital record and drug arrest questions, claimant's attorney directed the witness not to answer the questions. The Court will consider each in turn within the context of the Uniform Rules for the Conduct of Depositions and case law.
First, defendant's attorney states in his supporting affirmation that "claimant denied using illegal drugs." Even so, the Court agrees with claimant's attorney's point that asking the claimant to explain why a hospital record produced at the deposition showed a positive result for opiate and marijuana use, despite claimant's denial of drug use, was a "completely improper" question, because the question necessarily calls for claimant to speculate as to why the hospital record shows a positive result for illegal drug use even as claimant is denying illegal drug use. Be that as it may, since the question is not protected by privilege or confidentiality and there has been no showing by claimant, either at the deposition or in opposing the defendant's motion, that "the question . . . would, if answered, cause significant prejudice to any person," the Uniform Rules for the Conduct of Depositions, section 221.2, require that the question be answered.
Next, the deposition transcript shows that, despite the speaking objections of claimant's attorney, claimant adequately answered the question about whether he had ever walked the trails in the Rocking Horse Ranch in "the area where the lake appears on the map" by testifying that "[t]o my knowledge I don't remember walking up that lake, to my memory towards it, alongside of it, I don't remember, no, to my best knowledge."
Finally, defendant's question to claimant "[w]ere you ever arrested for drug possession or use" was not prohibited by privilege or confidentiality and there has been no showing by claimant, either at the deposition or in opposing the defendant's motion, that it was plainly improper or "would, if answered, cause significant prejudice to any person."
Claimant argues that because claimant may not be impeached at trial based solely upon an arrest, as opposed to a conviction, the question need not be answered. The Court finds that the Uniform Rules for the Conduct of Depositions, section 221.2, and case law, require that the question be answered:
"[I]n an examination before trial unless a question is clearly violative of a witness's constitutional rights, or of some privilege recognized in law, or is palpably irrelevant, questions should be freely permitted and answered, since all objections other than as to form are preserved for the trial any may be raised at that time . . . Thus, although any answers elicited may well be unusable or limited in use at a subsequent trial, they should, nevertheless, not have been disallowed on discovery" (Watson v State of New York, 53 AD2d 798, 799 [3d Dept 1976]; see Elie v City of New York, 92 AD3d 716, 718 [2d Dept 2012]).
The Court further finds that claimant's counsel interfered with the defendant's deposition of claimant, to the extent described above with respect to the questions whether claimant had any knowledge why his blood and/or urine allegedly tested positive for opiates and marijuana after the accident and whether claimant was ever arrested for drug possession or use.
Defendant's motion for a protective order is granted in part and denied in part as set forth above, and claimant is ordered to appear for a further deposition with respect to the disputed questions, and relevant follow-up questions based upon the answers to the disputed questions. The Deposition is to be conducted in compliance with the Uniform Rules for the Conduct of Depositions.
September 18, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion, filed April 25, 2018;
2. Affirmation of Paul F. Cagino, dated April 25, 2018, and annexed exhibits;
3. Affirmation in Opposition of Michael Stieglitz, dated July 2, 2018, and attached exhibit.