In an action to recover damages for personal injuries, plaintiffs move by order to show cause to quash the judicial subpoena for the deposition of non-party witness, Jennifer Getler, R.N., pursuant to CPLR 2304: Papers Considered NYSCEF DOC NO. 120-147 1. Order to Show Cause/Affirmation of Jon Kolbrener, Esq./Exhibits A-L/Memorandum of law/Affidavit of service 2. Affirmation of Kenneth E. Pitcoff, Esq. in opposition/Exhibit 1/Affirmation of Joan M. Cocha, Esq. of service 3. Affirmation of Nathan Losman, Esq. in opposition/Affidavit of Anamika Bhatnagar/Exhibit A/Affidavit of service 4. Reply Affirmation of Jon Kolbrener, Esq./Exhibits K-N/Memorandum of Law DECISION & ORDER Factual and Relevant Procedural Background Plaintiff Mauro Vaisman allegedly sustained personal injuries on April 13, 2019, when he tripped and fell on an elevated sidewalk flag on a public sidewalk adjacent to the premises located at 80 Cleveland Drive, Croton-on-Hudson.1 On March 17, 2022, this Court issued a Decision & Order vacating the Trial Readiness Order, dated May 5, 2021, and Note of Issue, dated May 14, 2021, and reopening discovery related to plaintiff MAURO VAISMAN’s October 15, 2021 surgery. Thereafter, on May 9, 2022, this Court so ordered a Judicial Subpoena to North Shore Home Care, for the deposition of Jennifer Getler, RN. Defendant The Village of Croton-on-Hudson (hereinafter “Village”) served the Judicial Subpoena on or about May 18, 2022. In response, Nurse Getler’s employer, Northwell Health, wrote a letter to defendant Village, dated May 23, 2022, stating that it required a HIPAA authorization to permit Nurse Getler to discuss the patient’s medical treatment. On May 26, 2022, the defendants requested from plaintiff via email an authorization permitting them to speak to Nurse Getler. Plaintiffs’ counsel refused and the instant motion ensued. A Trial Readiness Order was filed by this Court on September 21, 2022, and Note of Issue filed by plaintiff on September 21, 2022. Plaintiffs argue that the subpoena for the deposition of Nurse Getler should be quashed because she is a non-party healthcare provider whose testimony is only permitted if it is unrelated to the treatment and there is no other way to secure the information. Plaintiff concedes that testimony that is unrelated to the treatment, but relevant to the manner in which the accident happened may be secured from a health care provider where there is a discrepancy between the injured plaintiff’s sworn testimony and the entry in the medical chart. Plaintiff argues that there are no discrepancies between plaintiff’s testimony and the notes in Nurse Getler’s record. Plaintiffs testified that he fell on the sidewalk and referred to the defect in the sidewalk where the accident occurred as a “stair” or “stairs” or “step”. In the medical record, Nurse Getler documented that that the plaintiff fell “on same level” and also that plaintiff “fell on neighbors stairs outside”. Plaintiffs argue that these entries are consistent with plaintiff Mauro Vaisman’s testimony. Plaintiffs also reference the Phelps Hospital chart wherein after the plaintiff’s first surgery, there are notes which reference the plaintiff using the word “step” which plaintiffs argue is used to describe the misleveled sidewalk at the location where the accident occurred. Plaintiffs argue that the attorney who questioned plaintiff also adopted these terms during the questioning at his 50h hearing and did not explore the issue further during discovery. Plaintiffs further claim that since defendants failed to pursue the deposition of Nurse Getler before the Trial Readiness Order and Note of Issue were filed in 2021, they waived their right to conduct this non-party discovery. Plaintiffs assert that the case was removed from the calendar and additional discovery was permitted limited to plaintiff’s second surgery only. Plaintiffs claim that the parties entered into a discovery stipulation which did not include the deposition of Nurse Getler and that it was a month before the second certification conference to restore the case to the calendar that defendants pursued this issue, at which point Northwell Health refused to permit the deposition of Nurse Getler. Plaintiff asserts that defendants also never secured an authorization permitting them to speak to Nurse Getler prior to the first filling of the note of issue. In opposition, defendant Village argues that it has not waived its right to conduct the non-party deposition of Nurse Getler as the note of issue has been vacated and Nurse Getler’s deposition is material and necessary as there are discrepancies between plaintiff’s testimony and Nurse Getler’s chart entries. Defendant Village argues that when the note of issue was vacated by this Court, discovery became subject to CPLR 101(a), pre-note discovery, and plaintiff should be compelled to provide defendants with HIPAA authorization as required by Nurse Getler’s employer, Northwell Health. Defendant Village states that it sought an authorization from plaintiffs’ counsel, but plaintiffs’ counsel refused to provide it arguing that it was impermissible discovery post note of issue. Defendant Village argues that the note of issue here was vacated and therefore the discovery sought is pre note of issue and permissible. Defendant Village claims there are discrepancies between plaintiff’s testimony and Nurse Getler’s medical chart which warrant her deposition. Defendant Village argues that the purpose of Nurse Getler’s deposition is to clarify discrepancies between where plaintiff testified he fell versus where plaintiff told Nurse Getler he fell, facts unrelated to diagnosis and treatment. Defendants Anamika Bhatnagar and Dennis J. Willette, Jr. argue that Nurse Getler is a vital witness to this action. Plaintiffs allege, and plaintiff testified, that plaintiff tripped and fell as a result of a raised sidewalk flag caused by a tree root part of a Village owned tree that pushed up the sidewalk, and that the height difference between the adjacent sidewalk flags was between four to five inches. Nurse Getler noted a medical history as reported to her by plaintiff eight days after the accident at issue, that plaintiff “while walking his dog, fell on neighbors stairs outside.” Defendants argue that there is a significant question as to whether plaintiff actually fell where he said he did, or somewhere else, which goes to the heart of liability. Defendant Bhatnagar submits an affidavit and swears that she was home at the time of the accident but did not witness the accident. Defendant Bhatnagar swears that she went outside after plaintiff had fallen because he was sitting on the front step of the steps leading from the sidewalk to her front door, which is approximately 15 feet away from the pushed up sidewalk flag. Defendant Bhatnagar states that she went outside and plaintiff Jody Vaiseman told her that her husband had fallen at the front step leading from the sidewalk to her front door, and Bhatnagar took a photograph of the area where Jody Vaiseman told her the plaintiff had fallen. Defendant Bhatnagar swears that it was her understanding that plaintiff had fallen and tripped over the front step leading from the sidewalk to her home’s front door, and not where the sidewalk was misleveled due to the tree root having pushed up the sidewalk. Discussion Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty of “matter material and necessary in the prosecution or defense of an action” in possession of a nonparty, providing the nonparty is apprised of the “circumstances or reasons such disclosure is sought or required.” (U.S. Bank Trust, N.A. v. Carter, 204 AD3d 727, 729 [2d Dept 2022]). A party or nonparty moving to quash a subpoena has the initial burden of establishing either that the requested disclosure is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious” (id.) Should the movant meet this burden, the subpoenaing party must then establish that the discovery sought is material and necessary to the prosecution or defense of the action (id. at 729-730). An application to quash a subpoena should be granted only where “the futility of the process to uncover anything legitimate is inevitable or obvious” or where the information sought is irrelevant to any proper inquiry (George v. Victoria Albi, Inc., 148 AD3d 1120, 1121 [2d Dept 2017] quoting Matter of Edge Ho Holding Corp., 256 NY 374, 382 [1931]). Here, plaintiffs have failed to meet their initial burden of establishing that the testimony of Nurse Getler is utterly irrelevant to the action or that the futility of the process to recovery anything legitimate is inevitable or obvious. However, even if plaintiffs had met their initial burden, defendants have established that Nurse Getler’s testimony regarding the location of the plaintiff’s trip and fall at issue, as reported to her by the plaintiff, is material and necessary to the defense of the action as it may directly impact defendants’ liability in this action. The issue here is unique in that a nonparty would have to comply with a subpoena even post note of issue being filed. The impediment is that because Nurse Getler is a health care provider, she requires authorization from plaintiff Mauro Vaisman to discuss the care she provided, including the medical history he reported to her. Plaintiffs’ arguments to quash the subpoena for Nurse Getler’s deposition and to not provide a HIPAA authorization permitting defendants to speak with Nurse Getler are reliant on the note of issue having been filed. Both the service of the subpoena for Nurse Getler’s deposition and defendants’ request for a HIPAA authorization permitting them to speak with Nurse Getler were after the first note of issue was vacated and before the note of issue was filed for the second time. Although the first note of issue was vacated for additional discovery that was expressly with regard to plaintiff’s second surgery, this does not preclude discovery on additional issues “material and necessary” to the action. Since defendants requested a HIPAA authorization to speak with Nurse Getler after the first note of issue was vacated and before the second note of issue was filed, defendants are entitled to same.2 Accordingly, it is hereby ORDERED that plaintiffs’ motion by order to show cause to quash the judicial subpoena for the deposition of non-party witness, Jennifer Getler, R.N., is DENIED; and it is further ORDERED that plaintiffs provide a HIPAA compliant authorization permitting defendants to speak with Nurse Getler. Dated: September 29, 2022
