New York State Court of Claims

New York State Court of Claims
HANNA v. ROSWELL PARK CANCER INSTITUTE CORPORATION, # 2021-053-548, Claim No. 129312, Motion No. M-97169

Synopsis

Roswell Park failed to demonstrate unusual, unexpected or extraordinary circumstances warranting discretionary relief to compel a non-party deposition after the Note of Issue was filed and less than 60 days prior to trial.

Case information

UID: 2021-053-548
Claimant(s): JOANNE L. HANNA
Claimant short name: HANNA
Footnote (claimant name) :
Defendant(s): ROSWELL PARK CANCER INSTITUTE CORPORATION
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129312
Motion number(s): M-97169
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: CAMPBELL & ASSOCIATES
BY: R. Colin Campbell, Esq.
Defendant's attorney: GIBSON, McASKILL & CROSBY, LLP
BY: Amanda C. Rossi, Esq.
Third-party defendant's attorney:
Signature date: September 29, 2021
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Joanne L. Hanna alleges in claim no. 129312 that on February 29, 2016, her left foot was injured during the course of surgery conducted at defendant Roswell Park Cancer Institute Corporation (Roswell Park). The parties completed pretrial discovery and a unified trial is scheduled to commence on November 15, 2021. Roswell Park now moves for an order by this Court compelling claimant to provide HIPAA-compliant authorizations for all providers who evaluated claimant's right ankle, as well as authorizations for Anthony Caruso, Sr., D.C., Family Care Physicians, and McAuley Seton Home Care Pharmacy. Roswell Park also moves to compel claimant to provide Arons authorizations for claimant's treating providers, thereby permitting them to speak ex parte with defense counsel regarding their care and treatment. Finally, Roswell Park moves for an order to require limited depositions of the claimant's sister, Jean Anatasi, as well as claimant to the allegations added in claimant's second supplemental bill of particulars. In the alternative, Roswell Park seeks an order precluding claimant from introducing any proof of damages at trial on the matters and claims added in claimant's second supplemental bill of particulars.

Claimant's counsel states in his affidavit in opposition to defendant's motion that he will provide all of the information requested by Roswell Park in this motion but that he will not agree to a non-party deposition of claimant's sister. In response to a question from the Court during oral argument that he clarify his position, claimant's counsel stated that he would provide all of the medical authorizations sought by Roswell Park and consistent with his letter to Roswell Park's counsel on July 12, 2021 (Exhibit M), would produce claimant for a limited deposition on the matters included in claimant's second supplemental bill of particulars. Both counsel confirmed to the Court during oral argument that the only matter remaining in dispute was whether claimant's sister would be ordered to appear for a limited deposition.

The second supplemental bill of particulars dated March 25, 2021, alleges that claimant developed "chronic lumbosacral pain and spasms and segmental and somatic dysfunction, which is exacerbated by standing and walking." On April 8, 2021, Roswell Park's counsel forwarded a notice to depose claimant's sister, Jean Anastasi. Two additional letters were sent to claimant's counsel before he replied on July 12, 2021, stating that he would not produce Ms. Anastasi. On July 30, 2021, Roswell Park's counsel reiterated their request to depose Ms. Anastasi, to which there was no reply from claimant's counsel.

In claimant's counsel's affidavit in opposition to this motion, he states that claimant testified about having issues with her lower back at her deposition on January 11, 2018 and as such, he stated that what is described in the second supplemental bill of particulars is not a new injury. With respect to Roswell Park's request to depose Ms. Anastasi after the filing of the note of issue and less than 60 days prior to the trial of this claim, claimant's counsel states that defendant has not demonstrated the required showing of "special, unusual or extraordinary circumstances spelled out factually," citing to Gould v Marone, 197 AD2d 862 (4th Dept 1993) and Sims v Ferraccio, 265 AD2d 805 (4th Dept 1999).

In response, Roswell Park's counsel states in her reply affirmation that defendant seeks to depose Ms. Anastasi regarding the activity seen on the surveillance videos in light of the claims regarding claimant's low back and the fact that Ms. Anastasi was present in the video and can testify whether claimant complained of any pain or disability. It is alleged that claimant testified that her activities of daily living are severely compromised by the injuries at issue. Roswell Park argues that this is contradicted by the activities visible on the surveillance video and as such, constitutes unusual and unanticipated special circumstances justifying post note of issue discovery. In addition, Roswell Park contends that this Court has discretion to permit post note of issue discovery so long as neither party is prejudiced citing to Portilla v Law Offs. of Arcia & Flanagan, 125 AD3d 956, 957 (2d Dept 2015) and Cabrera v Abaev, 150 AD3d 588, 588 (1st Dept 2017).

It is the finding of this Court that Roswell Park has not demonstrated that unusual, unexpected or extraordinary circumstances exist warranting the exercise of discretion by this Court to order a limited non-party deposition of Ms. Anastasi. The fact that Ms. Anastasi appears in surveillance video conducted by Roswell Park after the Note of Issue was filed and in anticipation of a trial does not constitute unusual or extraordinary circumstances warranting post note of issue discovery. In that the defendant will have full and complete access to claimant's medical records, access to all of claimant's treating physicans and a limited deposition of claimant regarding the alleged injury to her lower back, defendant will not be prejudiced by denial of a non-party deposition prior to trial. Roswell Park will have full opportunity at trial to question Ms. Anastasi.

Accordingly, as claimant has agreed to comply with the relief sought by Roswell Park in paragraphs 1, 2, 3, 4 and 6 of its notice of motion as regards the HIPAA-compliant authorizations, the Arons authorizations and the limited deposition of claimant, those issues are moot. As to paragraph 5 of the notice of motion seeking a non-party deposition of Ms. Anastasi, that request is hereby denied.

September 29, 2021

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered by the Court:

1) Notice of Motion and affirmation of Kathleen M. Sweet, Esq., dated September 1, 2021 with annexed Exhibits A-Q;

2) Attorney Affidavit of R. Colin Campbell, Esq., sworn to September 14, 2021; and

3) Reply Affirmation of Amanda C. Rossi, Esq., dated September 16, 2021 with annexed Exhibit A.