Preview
FILED: NEW YORK COUNTY CLERK 10/18/2018 03:38 PM INDEX NO. 153201/2015
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/18/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------~~~------~~-~~----~~--~~~-~~~~~~~~x
OFRA BELL, Index No. 153201/15
Plaintiff,
AFFIRMATION
-against- IN SUPPORT
DANIEL C. BAKER, M.D., P.C., DANIEL C. BAKER,
M.D., STEVEN M. LEVINE, M.D.,
Defendants.
-~~--------~~~----------~~~~-~~~~~~-----~~~~-~~x
C. MICHELLE CLEMMENS, an attorney duly admitted to practice law in the State of
New York, affirms the following under penalty of perjury:
1. I am an associate with the law firm of LIPSIG, SHAPEY, MANUS &
MOVERMAN, P.C., attorneys for the plaintiff OFRA BELL herein, and am fully familiar with
the facts and circumstances of the within action.
2. This Affirmation is submitted in support of the instant motion, pursuant to CPLR
§§3103 and 3117(a)(3), for a protective order directing that the deposition of plaintiff's treating
physician Dr. Batya Yaffe, M.D., be conducted by remote electronic means and for leave to
employ a video transcription of her testimony at trialin lieu of appearing in person. It is
respectfully submitted that the instant motion should be granted for the following reasons:
A. Dr. Yaffe treated Ms. Bell extensively for the injuries she sustained as a
defendants'
result of the negligent medical treatment, including performing
a surgical procedure and as such is a highly relevant witness;
B. Dr. Yaffe resides in Israel, where she has an active medical practice, both
private and at local hospitals;
C. Travel to the United States for a deposition and/or trial testimony is not
feasible and would present an undue hardship for Dr. Yaffe and for her
patient, Ms. Bell;
D. New York Courts permit a deposition by electronic means under such
circumstances as CPRL §3117(a)(4) specifically contemplates the
deposition of a treating physician and Uniform Rule 202.15 allows for the
videotape recording of civil depositions;
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E. There are no real obstacles to taking the deposition of Dr. Yaffe while she
is in Israel, as CPLR §3113(a)(3) specifically provides for the taking of a
deposition of a witness in a foreign country and sets forth the manner in
which an individual may be sworn; and
F. Courts in New York County routinely allow for the deposition of non-party
witnesses, especially a treating physician, after the Note of Issue has been
filed.
3. This is an action sounding in medical malpractice by the defendants in the course
of their treatment of plaintiff OFRA BELL beginning on December 10, 2013 and continuing. As
a result, Ms. Bell suffered significant injuries to her hands and fingers, including permanent and
painful contractures of her fingers on the right hand. She had to undergo hand surgery with Dr.
defendants'
Yaffe to remove extensive scar tissue that resulted from the negligence and
malpractice. She required almost two years of intensive and painful hand therapy and needed to
wear braces for the deficits caused by Dr. Levine and his senior partner Dr. Baker.
4. Despite the surgery and this lengthy and painful treatment, Ms. Bell continues to
suffer from painful contractures, restrictions of motion, continuing pain and limitations of use of
her hands. Ms. Bell is an Israeli citizen and resides in Israel. She had been treated several times
before the December 10 and December 17, 2013 procedures by Dr. Baker, but had never been
treated by Dr. Levine before December 2013. She began treating with Dr. Yaffe in February of
2014 after developing the painful contractures in her hands, and continues to treat with Dr. Yaffe
to date. See Dr. Yaffe's narrative reports and notes, translated into English, annexed as Exhibit
"A". These reports were previously exchanged with defendants.
PROCEDURAL HISTORY
5. On July 3, 2018 plaintiff served defendants with a Notice to Take Videotaped
Deposition of Dr. Yaffe on August 2"d, 2018 at Diamond Reporting & Legal Video, 16 Court
Street, Brooklyn, New York. The notice indicated that the deposition would be recorded by
stenographer and by means of simultaneous audio and visual electronic recording, as Dr. Yaffe is
not easily able to travel to New York. See Exhibit "B". By letter dated July 5, 2018, defendants
objected to plaintiff's notice and refused to proceed with the videotaped deposition. See Exhibit
"C". Plaintiff made a good faith attempt to resolve the dispute by letter dated July 10, 2018. See
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Exhibit "D". Unfortunately no agreement was reached, and so the parties requested and
appeared for a status conference with the Court on October 9, 2018, at which time plaintiff was
directed to make the instant motion.
LEGAL ARGUMENT
6. It isrespectfully submitted that defendants have no valid basis for their objections
to plaintiff's Notice or to doing the videotaped deposition of Dr. Yaffe. New York Courts have
routinely permitted the deposition of a witness by electronic means when the witness lives outside
the jurisdiction and travel to the area would present an undue hardship. In Roeovin v. Rogovin,
(1"
3 A.D.3d 352 Dept. 2004), the nonresident defendant moved for a protective order, asking
that her deposition be conducted by electronic means. The First Department affirmed the lower
Court's granting of the order, finding that requiring the defendant to travel from her home in
Kansas to New York City to be deposed would result in hardship. Similarly, in American Bank
(1"
Note Corp. v. Daniele, 81 A.D.3d 500 Dept. 2011), the First Department agreed that forcing
matter"
defendant to come to New York to testify was "not feasible as a practical and would have
resulted in hardship. Id. at 502.
7. Similarly, in the instant matter itwould result in undue hardship on both Dr.
Yaffe and Ms. Bell to force them to bear the time and expense of travel to New York. Dr. Yaffe
has a busy medical practice and travel from Israel to New York would force her to close her office
for several days, missing patients and surgeries. The cost to plaintiff of getting Dr. Yaffe to New
York from Israel is also prohibitively expensive. Bringing Dr. Yaffe to New York to testify is not
feasible as a practical matter, as again Dr. Yaffe would have to be away from her practice for a
significant amount of time, which is an unnecessary hardship when a far simpler method is
available under CPLR §§ 3113 and 3117 and 22 NYCRR 202.15.
8. Video recording of depositions ispermitted in New York pursuant to CPLR §3113
and 22 NYCRR 202.15. CPLR§3113(a) (3) provides, in pertinent part, "Persons before whom
depositions may be taken...in a foreign country, any diplomatic consular agent or representative
of the United States, appointed or accredited to, and residing within, the country, or a person
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appointed by commission or under letters rogatory, or an officer of the armed forces authorized to
deeds."
take acknowledgment of Several court reporting services in New York provide such
services and will assist in making arrangements to have the appropriate agent present,
9. Additionally, 22 NYCRR 202.15 provides, "[d]epositions authorized under the
provisions of the Civil Practice Law and Rules or other law may be taken, as permitted by section
3113(b) of the Civil Practice Law and Rules, by means of simultaneous audio and visual
section."
electronic recording, provided such recording ismade in conformity with this Thus
defendants'
there isno sound basis in law for objection to the taking of Dr. Yaffe's deposition by
electronic means in Israel.
10. Once a deposition has been taken and recorded on video, itmay be used at trialin
accordance with "the provisions of the Civil Practice Law and rules and allother relevant
statutes, court rules and decisional law relating to depositions and relating to the admissibility of
evidence."
22 NYCRR 202.15(h)(i). Counsel wishing to present videotaped deposition testimony
necessary"
at trial must be ready to provide "whatever equipment and personnel ... to effectuate
the presentation in court. Id. Plaintiff has already assured defendants that she willmake
arrangements to have the deposition taken by proper means under CPRL § 3113 and to provide
the equipment and personnel necessary to do so.
11. Additionally, CPLR §3117(a)(4) specifically contemplates the taking of a
deposition of a treating physician. It states that "the deposition of a person authorized to practice
medicine may be used by any party without the necessity of showing unavailability or special
circumstances."
This section allows taped depositions of physicians to be played without a
showing of exceptional circumstances or unavailability, subject to the right of any party to move
pursuant to CPLR 3101 to prevent abuse. Defendants have not so-moved in this case. The CPLR
and NYCRR make clear that a videotaped deposition of a treating physician may be taken in a
foreign country and subsequently used at trial.In fact, the various provisions of CPLR3117(a)
(2d
currently at issue were well address in Wang v. A&W Travel, Inc., 130 A.D.3d 974 Dept.
2015). There, the nonresident plaintiff resided in China and demonstrated that he was unable to
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return to the United States for a continuation of his deposition. The Appellate Court ruled that
hardship"
the plaintiff demonstrated "undue ifhe was forced to return to New York to be
deposed, and also that plaintiff's motion pursuant to CPLR 3117(a)(3) for leave to use a video
transcription of his deposition testimony taken abroad at trial should have been granted.
12. Recognizing the difficulty and expense of securing the courtroom attendance of a
physician and the diversion of the physician's time from patients and medical duties while
awaiting a turn in court, CPLR 3117(a)(4) permits the physician's deposition to be used by any
party without laying a foundation. As long as the deposition was taken on notice to all parties,
any party can use the deposition, including the party for whom the physician deposed. And it
may be used for allpurposes. The usual foundation needed to introduce the deposition of a
witness as evidence-in-chief under CPLR 3117(a)(3) is unnecessary.
13. In Provenzano v. 181 South Franklin Associates Inc., 2009 WL 1504724 (Sup.
Ct., Nassau Co. 2009), the court ruled that a party seeking to depose her own physician must
comply with Uniform Rule section 202.17, which governs the exchange of medical reports in
personal injury and wrongful death actions and supplements the provisions in CPLR Article 31.
See Siegel & Connors, New York Practice § 363. The party must provide her physician's report in
advance of the deposition, or forfeit the right to introduce the testimony at trialpursuant to
CPLR 3117(a)(4). N.Y. C.P.L.R. 3117 (McKinney). As detailed above, plaintiffhas complied
with NYCRR 202.17 and exchanged the narrative reports of Dr. Yaffe, annexed hereto. There is
thus no reason to deny plaintiff's request to depose Dr. Yaffe by videotaped means for purposes of
use at trial.
defendants'
14. With respect to remaining contention that the deposition of Dr. Yaffe
represents improper post-Note of Issue discovery, counsel is well aware that the purpose of Dr.
Yaffe's videotaped deposition is for use at trial, and that no trial date has presently been
scheduled with this Court. The parties have the firstpre-trial conference in this matter
scheduled for November 27, 2018, for purposes of discussing the scheduling of the trial. Plaintiff
has been attempting to schedule the deposition of Dr. Yaffe since July. Given that no trialdate
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has yet been scheduled, that plaintiff has exchanged allreports by Dr. Yaffe, and that the purpose
of her deposition is for use at trialin lieu of her in-person appearance, itis respectfully requested
that plaintiffs motion for a protective order directing that the deposition of plaintiffs treating
physician Dr. Batya Yaffe, M.D., be conducted by remote electronic means and for leave to
employ a video transcription of her testimony at trialin lieu of appearing in person be granted in
its entirety.
15. No prior application has been made for the relief requested herein.
WHEREFORE, plaintiff respectfully requests that the within motion be granted in its
entirety, along with such other and further relief as this Court deems just and proper.
DATED: New York, New York
October 16, 2018
C. MICPUitlE CLEMMENS
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Preview
FILED: NEW YORK COUNTY CLERK 10/18/2018 03:38 PM INDEX NO. 153201/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/18/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------~~~------~~-~~----~~--~~~-~~~~~~~~x OFRA BELL, Index No. 153201/15 Plaintiff, AFFIRMATION -against- IN SUPPORT DANIEL C. BAKER, M.D., P.C., DANIEL C. BAKER, M.D., STEVEN M. LEVINE, M.D., Defendants. -~~--------~~~----------~~~~-~~~~~~-----~~~~-~~x C. MICHELLE CLEMMENS, an attorney duly admitted to practice law in the State of New York, affirms the following under penalty of perjury: 1. I am an associate with the law firm of LIPSIG, SHAPEY, MANUS & MOVERMAN, P.C., attorneys for the plaintiff OFRA BELL herein, and am fully familiar with the facts and circumstances of the within action. 2. This Affirmation is submitted in support of the instant motion, pursuant to CPLR §§3103 and 3117(a)(3), for a protective order directing that the deposition of plaintiff's treating physician Dr. Batya Yaffe, M.D., be conducted by remote electronic means and for leave to employ a video transcription of her testimony at trialin lieu of appearing in person. It is respectfully submitted that the instant motion should be granted for the following reasons: A. Dr. Yaffe treated Ms. Bell extensively for the injuries she sustained as a defendants' result of the negligent medical treatment, including performing a surgical procedure and as such is a highly relevant witness; B. Dr. Yaffe resides in Israel, where she has an active medical practice, both private and at local hospitals; C. Travel to the United States for a deposition and/or trial testimony is not feasible and would present an undue hardship for Dr. Yaffe and for her patient, Ms. Bell; D. New York Courts permit a deposition by electronic means under such circumstances as CPRL §3117(a)(4) specifically contemplates the deposition of a treating physician and Uniform Rule 202.15 allows for the videotape recording of civil depositions; 1 of 6 FILED: NEW YORK COUNTY CLERK 10/18/2018 03:38 PM INDEX NO. 153201/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/18/2018 E. There are no real obstacles to taking the deposition of Dr. Yaffe while she is in Israel, as CPLR §3113(a)(3) specifically provides for the taking of a deposition of a witness in a foreign country and sets forth the manner in which an individual may be sworn; and F. Courts in New York County routinely allow for the deposition of non-party witnesses, especially a treating physician, after the Note of Issue has been filed. 3. This is an action sounding in medical malpractice by the defendants in the course of their treatment of plaintiff OFRA BELL beginning on December 10, 2013 and continuing. As a result, Ms. Bell suffered significant injuries to her hands and fingers, including permanent and painful contractures of her fingers on the right hand. She had to undergo hand surgery with Dr. defendants' Yaffe to remove extensive scar tissue that resulted from the negligence and malpractice. She required almost two years of intensive and painful hand therapy and needed to wear braces for the deficits caused by Dr. Levine and his senior partner Dr. Baker. 4. Despite the surgery and this lengthy and painful treatment, Ms. Bell continues to suffer from painful contractures, restrictions of motion, continuing pain and limitations of use of her hands. Ms. Bell is an Israeli citizen and resides in Israel. She had been treated several times before the December 10 and December 17, 2013 procedures by Dr. Baker, but had never been treated by Dr. Levine before December 2013. She began treating with Dr. Yaffe in February of 2014 after developing the painful contractures in her hands, and continues to treat with Dr. Yaffe to date. See Dr. Yaffe's narrative reports and notes, translated into English, annexed as Exhibit "A". These reports were previously exchanged with defendants. PROCEDURAL HISTORY 5. On July 3, 2018 plaintiff served defendants with a Notice to Take Videotaped Deposition of Dr. Yaffe on August 2"d, 2018 at Diamond Reporting & Legal Video, 16 Court Street, Brooklyn, New York. The notice indicated that the deposition would be recorded by stenographer and by means of simultaneous audio and visual electronic recording, as Dr. Yaffe is not easily able to travel to New York. See Exhibit "B". By letter dated July 5, 2018, defendants objected to plaintiff's notice and refused to proceed with the videotaped deposition. See Exhibit "C". Plaintiff made a good faith attempt to resolve the dispute by letter dated July 10, 2018. See 2 of 6 FILED: NEW YORK COUNTY CLERK 10/18/2018 03:38 PM INDEX NO. 153201/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/18/2018 Exhibit "D". Unfortunately no agreement was reached, and so the parties requested and appeared for a status conference with the Court on October 9, 2018, at which time plaintiff was directed to make the instant motion. LEGAL ARGUMENT 6. It isrespectfully submitted that defendants have no valid basis for their objections to plaintiff's Notice or to doing the videotaped deposition of Dr. Yaffe. New York Courts have routinely permitted the deposition of a witness by electronic means when the witness lives outside the jurisdiction and travel to the area would present an undue hardship. In Roeovin v. Rogovin, (1" 3 A.D.3d 352 Dept. 2004), the nonresident defendant moved for a protective order, asking that her deposition be conducted by electronic means. The First Department affirmed the lower Court's granting of the order, finding that requiring the defendant to travel from her home in Kansas to New York City to be deposed would result in hardship. Similarly, in American Bank (1" Note Corp. v. Daniele, 81 A.D.3d 500 Dept. 2011), the First Department agreed that forcing matter" defendant to come to New York to testify was "not feasible as a practical and would have resulted in hardship. Id. at 502. 7. Similarly, in the instant matter itwould result in undue hardship on both Dr. Yaffe and Ms. Bell to force them to bear the time and expense of travel to New York. Dr. Yaffe has a busy medical practice and travel from Israel to New York would force her to close her office for several days, missing patients and surgeries. The cost to plaintiff of getting Dr. Yaffe to New York from Israel is also prohibitively expensive. Bringing Dr. Yaffe to New York to testify is not feasible as a practical matter, as again Dr. Yaffe would have to be away from her practice for a significant amount of time, which is an unnecessary hardship when a far simpler method is available under CPLR §§ 3113 and 3117 and 22 NYCRR 202.15. 8. Video recording of depositions ispermitted in New York pursuant to CPLR §3113 and 22 NYCRR 202.15. CPLR§3113(a) (3) provides, in pertinent part, "Persons before whom depositions may be taken...in a foreign country, any diplomatic consular agent or representative of the United States, appointed or accredited to, and residing within, the country, or a person 3 of 6 FILED: NEW YORK COUNTY CLERK 10/18/2018 03:38 PM INDEX NO. 153201/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/18/2018 appointed by commission or under letters rogatory, or an officer of the armed forces authorized to deeds." take acknowledgment of Several court reporting services in New York provide such services and will assist in making arrangements to have the appropriate agent present, 9. Additionally, 22 NYCRR 202.15 provides, "[d]epositions authorized under the provisions of the Civil Practice Law and Rules or other law may be taken, as permitted by section 3113(b) of the Civil Practice Law and Rules, by means of simultaneous audio and visual section." electronic recording, provided such recording ismade in conformity with this Thus defendants' there isno sound basis in law for objection to the taking of Dr. Yaffe's deposition by electronic means in Israel. 10. Once a deposition has been taken and recorded on video, itmay be used at trialin accordance with "the provisions of the Civil Practice Law and rules and allother relevant statutes, court rules and decisional law relating to depositions and relating to the admissibility of evidence." 22 NYCRR 202.15(h)(i). Counsel wishing to present videotaped deposition testimony necessary" at trial must be ready to provide "whatever equipment and personnel ... to effectuate the presentation in court. Id. Plaintiff has already assured defendants that she willmake arrangements to have the deposition taken by proper means under CPRL § 3113 and to provide the equipment and personnel necessary to do so. 11. Additionally, CPLR §3117(a)(4) specifically contemplates the taking of a deposition of a treating physician. It states that "the deposition of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances." This section allows taped depositions of physicians to be played without a showing of exceptional circumstances or unavailability, subject to the right of any party to move pursuant to CPLR 3101 to prevent abuse. Defendants have not so-moved in this case. The CPLR and NYCRR make clear that a videotaped deposition of a treating physician may be taken in a foreign country and subsequently used at trial.In fact, the various provisions of CPLR3117(a) (2d currently at issue were well address in Wang v. A&W Travel, Inc., 130 A.D.3d 974 Dept. 2015). There, the nonresident plaintiff resided in China and demonstrated that he was unable to 4 of 6 FILED: NEW YORK COUNTY CLERK 10/18/2018 03:38 PM INDEX NO. 153201/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/18/2018 return to the United States for a continuation of his deposition. The Appellate Court ruled that hardship" the plaintiff demonstrated "undue ifhe was forced to return to New York to be deposed, and also that plaintiff's motion pursuant to CPLR 3117(a)(3) for leave to use a video transcription of his deposition testimony taken abroad at trial should have been granted. 12. Recognizing the difficulty and expense of securing the courtroom attendance of a physician and the diversion of the physician's time from patients and medical duties while awaiting a turn in court, CPLR 3117(a)(4) permits the physician's deposition to be used by any party without laying a foundation. As long as the deposition was taken on notice to all parties, any party can use the deposition, including the party for whom the physician deposed. And it may be used for allpurposes. The usual foundation needed to introduce the deposition of a witness as evidence-in-chief under CPLR 3117(a)(3) is unnecessary. 13. In Provenzano v. 181 South Franklin Associates Inc., 2009 WL 1504724 (Sup. Ct., Nassau Co. 2009), the court ruled that a party seeking to depose her own physician must comply with Uniform Rule section 202.17, which governs the exchange of medical reports in personal injury and wrongful death actions and supplements the provisions in CPLR Article 31. See Siegel & Connors, New York Practice § 363. The party must provide her physician's report in advance of the deposition, or forfeit the right to introduce the testimony at trialpursuant to CPLR 3117(a)(4). N.Y. C.P.L.R. 3117 (McKinney). As detailed above, plaintiffhas complied with NYCRR 202.17 and exchanged the narrative reports of Dr. Yaffe, annexed hereto. There is thus no reason to deny plaintiff's request to depose Dr. Yaffe by videotaped means for purposes of use at trial. defendants' 14. With respect to remaining contention that the deposition of Dr. Yaffe represents improper post-Note of Issue discovery, counsel is well aware that the purpose of Dr. Yaffe's videotaped deposition is for use at trial, and that no trial date has presently been scheduled with this Court. The parties have the firstpre-trial conference in this matter scheduled for November 27, 2018, for purposes of discussing the scheduling of the trial. Plaintiff has been attempting to schedule the deposition of Dr. Yaffe since July. Given that no trialdate 5 of 6 FILED: NEW YORK COUNTY CLERK 10/18/2018 03:38 PM INDEX NO. 153201/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/18/2018 has yet been scheduled, that plaintiff has exchanged allreports by Dr. Yaffe, and that the purpose of her deposition is for use at trialin lieu of her in-person appearance, itis respectfully requested that plaintiffs motion for a protective order directing that the deposition of plaintiffs treating physician Dr. Batya Yaffe, M.D., be conducted by remote electronic means and for leave to employ a video transcription of her testimony at trialin lieu of appearing in person be granted in its entirety. 15. No prior application has been made for the relief requested herein. WHEREFORE, plaintiff respectfully requests that the within motion be granted in its entirety, along with such other and further relief as this Court deems just and proper. DATED: New York, New York October 16, 2018 C. MICPUitlE CLEMMENS 6 of 6