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Tran v. New Rochelle Hospital Medical Center3/21/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Defendants appeal from an order of the Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about May 24, 2001, which granted plaintiffs' motion to compel them to produce surveillance tapes prior to the injured plaintiff's appearance for further deposition.
(*2)
This appeal presents for resolution a deceptively simple question: When, in the pre-trial course of a personal injury action, it appears that the defendant has recorded a surveillance of the plaintiff's daily activities with the apparent objective of undermining the latter's disability claim, is the defendant required by law to furnish the plaintiff a copy of the surveillance material prior to the plaintiff's further deposition on this issue? Defendant herein, raising the concern of "tailored" testimony, seeks the first bite at this apple -- deposition first and turnover afterward. Two of our sister Departments of the Appellate Division, as well as the IAS Court, have rejected this argument and directed the opposite course. We respectfully decline to adopt that procedure, and direct instead that the plaintiff's deposition proceed before delivery of the tape to him.
In December 1995, Tai Tran was a hibachi chef at the Edo Restaurant in Pelham, when he fell at the facility, then under renovation, and lacerated his left palm. The wound was treated and sutured at the emergency ward of defendant hospital. Defendant Dr. Mahoney removed the stitches two weeks later, and cleared Tai for return to work. This resumption was premature, however, and Tai's convalescence had to be extended after the wound continued to bleed. When Tai returned to full- time duties about one month after the injury, he sensed that his culinary dexterity had diminished somewhat. Then in February 1996, while trimming steak at the restaurant, Tai suffered another injury which he attributed to the weakness in his left hand caused by the earlier injury. This second injury allegedly disabled him at least until the commencement of the instant lawsuit in June 1998, wherein plaintiffs allege, inter alia, defendants' failure to diagnose and properly treat an injury to his ulnar nerve suffered at the time of the first trauma.
In a pre-trial examination in May 1999, Tai testified that his physician had cautioned against resuming work in a restaurant, suggesting that he look for other employment. Plaintiffs thereafter delayed in furnishing authorizations to defendants for review of income and employment records, which (*3)apparently had been agreed to upon the filing of note of issue in December 1999. When it was learned, in November 2000, that Tai had indeed returned to work, defendants renewed their demand for discovery, and for the right to re-examine him. Only after defendants moved to compel such discovery did plaintiffs comply to the extent of providing authorizations to obtain medical and employment records. Plaintiffs objected to discovery of income tax records, arguing that such data was readily available from employers, and opposed any further deposition as unwarranted.
It was about this time that plaintiffs learned defendants had surreptitiously conducted video surveillance of Tai. Plaintiffs moved for disclosure and copies of the surveillance materials. Defendants argued that they were not required to produce any tapes until after the injured party had submitted to further deposition, in order to prevent him from tailoring his testimony.
The IAS court granted the motion for further examination of Tai, in order to explore his present physical condition and the circumstances s
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