        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

470
CA 10-02471
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


WILLIAM J. MAYER AND LISA A. MAYER,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

HENRY HOANG, INDIVIDUALLY AND DOING BUSINESS
AS HENRY’S NAILS, DEFENDANT-RESPONDENT.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS.

COHEN & LOMBARDO, P.C., BUFFALO (JONATHAN D. COX OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered October 25, 2010 in a personal injury action.
The order, insofar as appealed from, granted the motion of defendant
to compel plaintiffs to provide a supplemental bill of particulars and
to compel a return deposition of plaintiff William J. Mayer.

     It is hereby ORDERED that the order so appealed from is
unanimously modified as a matter of discretion and on the law by
denying defendant’s motion with respect to a return deposition of
plaintiff in part, vacating the third ordering paragraph and
substituting therefor a directive that plaintiff submit to a further
deposition that is limited to questions concerning the June 2007 motor
vehicle accident and relevant questions deriving therefrom, in
accordance with 22 NYCRR 221.2, and as modified the order is affirmed
without costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries allegedly sustained by
William J. Mayer (plaintiff) when he fell from a ladder while removing
a light fixture from the exterior of Henry’s Nails, a business owned
by defendant. Contrary to plaintiffs’ contention, we conclude that
Supreme Court did not abuse its discretion in granting that part of
defendant’s motion seeking to compel plaintiffs to serve a
supplemental bill of particulars that included wage loss calculations
to be verified by plaintiff, subject to preclusion of a claim for any
such damages in the event of plaintiffs’ failure to comply with that
part of defendant’s motion (see CPLR 3042 [d]).

     We recognize that “ ‘[t]he purpose of a bill of particulars is to
amplify the pleadings, limit proof, and prevent surprise at trial; it
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                                                         CA 10-02471

is not an evidence-gathering device’ ” (Khoury v Chouchani, 27 AD3d
1071, 1072). Nevertheless, we conclude that plaintiffs failed to
provide an adequate response to defendant’s demand for information
concerning plaintiff’s “time lost and loss of income sustained.” In
their bill of particulars, plaintiffs’ response thereto was that the
total amount of lost earnings was “unknown at the present time and
will be supplemented in the future.” Plaintiffs thereafter produced a
computer printout that purported to show plaintiff’s earnings from the
year 2000 through the year 2008, when the accident occurred. After
plaintiff’s deposition and in response to a follow-up letter from
defendant, plaintiffs refused to provide any additional information
concerning lost earnings, stating merely that the bill of particulars
would be supplemented “in accordance with the requirements of the
CPLR.” The record reflects, however, that plaintiffs had more than
sufficient time to provide a calculation of plaintiff’s lost wages,
particularly in light of the fact that plaintiff had already returned
to his “normal amount of activities” at the time of his deposition in
2010, and the fact that correspondence from plaintiffs’ attorney
following plaintiff’s deposition did not indicate that plaintiffs
lacked any information needed to calculate lost wages (cf. Felock v
Albany Med. Ctr. Hosp., 258 AD2d 772, 774). Moreover, defendant
requested information only and not evidentiary material or expert
proof. We further conclude that the court properly ordered that the
supplemental bill of particulars be verified by plaintiff inasmuch as
the record establishes that plaintiff’s wife is not sufficiently
“acquainted with the facts” within the meaning of CPLR 3020 (d).

     Plaintiffs further contend that the court erred in granting that
part of defendant’s motion seeking to compel plaintiff to submit to a
return deposition and “to answer all questions put to him including
any questions previously asked at the prior deposition as well as
questions regarding any of the issues inquired of by” defendant’s
attorney. Even assuming, arguendo, that defendant is correct that
such part of the order is not appealable as of right (see Roggow v
Walker, 303 AD2d 1003, 1003-1004; Presti v Schalck, 26 AD2d 793; Brown
v Golden, 6 AD2d 766), we exercise our discretion to deem the notice
of appeal with respect to that part of the order to be an application
pursuant to CPLR 5701 (c) for permission to appeal, and we grant such
permission (see Roggow, 303 AD2d at 1004). On the merits, we agree
with plaintiffs that the court abused its discretion in imposing that
broad requirement. Defendant took issue with only five of the
questions that plaintiff refused to answer, and defendant concedes in
his brief on appeal that plaintiff essentially answered two of those
questions, which concerned whether plaintiff smokes cigarettes. With
respect to the remaining questions, we conclude that plaintiff
properly refused to answer questions concerning whether defendant
supplied “any defective, unsafe or improper devices or materials which
caused [plaintiff’s] fall” or whether the work area appeared “to be
unreasonably dangerous.” It is well settled that a plaintiff at a
deposition may not “be compelled to answer questions seeking legal and
factual conclusions or questions asking him [or her] to draw
inferences from the facts” (Lobdell v South Buffalo Ry. Co., 159 AD2d
958; see Barber v BPS Venture, Inc., 31 AD3d 897). Plaintiff also
properly refused to answer the question whether he had “a calculation
                                 -3-                           470
                                                         CA 10-02471

as to any lost wages that [he] would claim as a result of this
incident” inasmuch as such question primarily seeks a legal conclusion
(see generally Barber, 31 AD3d 897; Lobdell, 159 AD2d 958). Further,
a review of plaintiff’s deposition transcript reflects that plaintiff
properly answered all other fact-based questions concerning his lost
wages (see Schwartz v Marien, 40 AD2d 1078).

     We conclude, however, that the court properly granted that part
of defendant’s motion seeking to require plaintiff to answer questions
concerning his June 2007 motor vehicle accident. At his deposition,
plaintiff was directed by his attorney not to answer the question
whether he “ever ma[de] a claim for bodily injury following a motor
vehicle accident in June of 2007.” Contrary to plaintiffs’
contention, that question does not implicate the physician-patient
privilege inasmuch as it does not request information concerning
doctor-patient communications or medical diagnosis or treatment (see
CPLR 4504 [a]; see generally Carter v Fantauzzo, 256 AD2d 1189, 1190).
Further, plaintiff alleges that, as a result of the fall, he injured
his back, hip, groin, pelvis, and elbow, areas that are commonly
injured in motor vehicle accidents, and thus the question was
reasonably calculated to lead to evidence that is “material and
necessary” to the defense of the action (CPLR 3101 [a]; see generally
Orlando v Richmond Precast, Inc., 53 AD3d 534; Rega v Avon Prods.,
Inc., 49 AD3d 329, 330). We therefore modify the order by denying
defendant’s motion with respect to a return deposition in part,
vacating the third ordering paragraph and substituting therefor a
directive that plaintiff submit to a further deposition that is
limited to questions concerning the June 2007 motor vehicle accident
and relevant questions deriving therefrom, in accordance with 22 NYCRR
221.2.




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
