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

1466
CA 12-00809
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.


RENEE SCIARA AND MATTHEW SCIARA,
PLAINTIFFS-APPELLANTS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

SURGICAL ASSOCIATES OF WESTERN NEW YORK, P.C.
AND GEORGE BLESSIOS, M.D.,
DEFENDANTS-RESPONDENTS.
---------------------------------------------
USHA CHOPRA, M.D. AND FAGER & AMSLER, LLP,
RESPONDENTS-APPELLANTS.
(APPEAL NO. 1.)


BRIAN P. FITZGERALD, P.C., BUFFALO (BRIAN P. FITZGERALD OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS-RESPONDENTS.

FAGER & AMSLER, LLP, LATHAM (NANCY MAY-SKINNER OF COUNSEL), FOR
RESPONDENTS-APPELLANTS.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (JOSEPH V. MCCARTHY OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (John M. Curran, J.), entered September 14, 2011 in a medical
malpractice action. The order, among other things, granted that part
of plaintiffs’ motion seeking to compel nonparty witness Usha Chopra,
M.D. to appear for the completion of her deposition.

     It is hereby ORDERED that the order so appealed from is modified
on the law by denying the cross motion of respondent Usha Chopra, M.D.
in its entirety and as modified the order is affirmed without costs in
accordance with the following Memorandum: Plaintiffs appeal and Usha
Chopra, M.D. (respondent), a nonparty, cross-appeals from an order
related to the deposition testimony of respondent. Plaintiffs
commenced this medical malpractice action alleging, inter alia, that
defendant George Blessios, M.D. was negligent with respect to surgery
he performed on Renee Sciara (plaintiff). Respondent, a pathologist,
examined tissue removed from plaintiff during the surgery. The
deposition of respondent was discontinued following a contentious
verbal exchange between plaintiffs’ counsel and respondent’s counsel
that arose when respondent’s counsel interrupted the deposition to
clarify a question asked by plaintiffs’ counsel. Plaintiffs moved,
inter alia, for an order precluding respondent’s counsel from
participating in any respect in the continued deposition of
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                                                         CA 12-00809

respondent. Respondent cross-moved, inter alia, for an order
permitting her counsel to participate in her deposition. Supreme
Court granted the motion in part by directing, inter alia, that
respondent was required to complete her deposition. The court also
granted the cross motion in part by permitting respondent’s counsel to
participate in the deposition as provided for in 22 NYCRR 221.2 and
221.3. The court erred in granting the cross motion to that extent
(see Thompson v Mather, 70 AD3d 1436, 1438), and we therefore modify
the order accordingly.

     As we stated in Thompson, “counsel for a nonparty witness does
not have a right to object during or otherwise to participate in a
pretrial deposition. CPLR 3113 (c) provides that the examination and
cross-examination of deposition witnesses ‘shall proceed as permitted
in the trial of actions in open court’ ” (id. [emphasis added]), and
it is axiomatic that counsel for a nonparty witness is not permitted
to object or otherwise participate in a trial (see e.g. id.). We
recognize that 22 NYCRR 221.2 and 221.3 may be viewed as being in
conflict with CPLR 3113 (c) inasmuch as sections 221.2 and 221.3
provide that an “attorney” may not interrupt a deposition except in
specified circumstances. Nevertheless, it is well established that,
in the event of a conflict between a statute and a regulation, the
statute controls (see Matter of Hellner v Board of Educ. of Wilson
Cent. School Dist., 78 AD3d 1649, 1651).

     We also recognize the practical difficulties that may arise in
connection with a nonparty deposition, which also have been the
subject of legal commentaries (see e.g. 232 Siegel’s Practice Review,
Objections by Nonparty Witness? at 4 [Apr. 2011]; Patrick M. Connors,
Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR
3313:7, 2013 Pocket Part at 31-33). However, we decline to depart
from our conclusion in Thompson (70 AD3d at 1438) that the express
language of CPLR 3113 (c) prohibits the participation of the attorney
for a nonparty witness during the deposition of his or her client. We
further note, however, that the nonparty has the right to seek a
protective order (see CPLR 3103 [a]), if necessary.

     We have reviewed the remaining contentions of plaintiffs and
respondent and conclude that they are without merit. We note that
documents included in the appendix to plaintiffs’ brief are outside
the record on appeal and therefore have not been considered (see
Sanders v Tim Hortons, 57 AD3d 1419, 1420).

     All concur except FAHEY and MARTOCHE, JJ., who dissent in part and
vote to affirm in the following Memorandum: We respectfully dissent
in part because we cannot agree with the majority that Supreme Court
erred in granting in part the cross motion of Usha Chopra, M.D.
(respondent), a nonparty, by permitting respondent’s counsel to
participate in a limited fashion during plaintiffs’ continued
deposition of respondent. We therefore would affirm the order. The
majority relies on the statement of this Court in Thompson v Mather
(70 AD3d 1436, 1438) that “counsel for a nonparty witness does not
have a right to object during or otherwise to participate in a
pretrial deposition.” We note that Thompson involved 22 NYCRR 202.15,
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                                                         CA 12-00809

which concerns the videotaping of deposition testimony that may be
filed with the clerk of the trial court and specifically refers to
objections “made by any of the parties during the course of the
deposition” (22 NYCRR 202.15 [g] [1], [2] [emphasis added]). Here,
the deposition was not taken pursuant to that rule, but rather was
taken pursuant to 22 NYCRR part 221, entitled Uniform Rules for the
Conduct of Depositions, which permits deponents, not merely “parties,”
to raise objections during the course of the deposition (see e.g. 22
NYCRR 221.2). We note that, in Thompson, the plaintiff moved for an
order precluding the nonparty deponent’s counsel from objecting to the
videotaped trial testimony “ ‘except as to privileged matters or in
the event that she were to deem questioning to be abusive or
harassing’ ” (id. at 1437). Thus, even the plaintiff’s counsel in
Thompson recognized that a nonparty has certain rights at the
deposition.

     The majority also relies, as did this Court in Thompson, on CPLR
3113 (c), which provides that the examination and cross-examination of
deposition witnesses “shall proceed as permitted in the trial of
actions in open court.” The majority thus concludes that, because
counsel for a nonparty witness is not permitted to object or otherwise
to participate at a trial, counsel for the nonparty witness likewise
is not permitted to object or otherwise participate at the nonparty’s
deposition. The majority believes that there is a conflict between
CPLR 3113 (c) and 22 NYCRR 221.2 and 221.3, which regulations permit
an “attorney” to interrupt a deposition in specified circumstances.

     We do not believe that CPLR 3113 (c) must be interpreted in a
manner that establishes a conflict with the Uniform Rules for the New
York State Trial Courts. “Where the language of a statute is
ambiguous or uncertain, the construction placed on it by
contemporaries . . . will be given considerable weight in its
interpretation” (McKinney’s Cons Laws of NY, Book 1, Statutes § 128
[a]), as in the case of a practical construction that has received
general acquiescence for a long period of time. In that regard, CPLR
3113 (c), which became effective in 1963 with the adoption of the CPLR
in place of the prior Civil Practice Act, does not have a direct
corollary in the Civil Practice Act. Former section 202 of the Civil
Practice Act discusses the “[m]anner of taking testimony” in a
deposition, but there is no identical predecessor to CPLR 3113 (c).

     The rules in question here, namely, 22 NYCRR 221.1 and 221.2,
became effective in 1986, approximately 23 years after the adoption of
CPLR 3113 (c). As one commentator has stated, numerous cases over the
years addressing issues arising at depositions of nonparties have
noted, without comment or criticism, the active participation of
counsel for the nonparty at the deposition (David Paul Horowitz, May I
Please Say Something, 83 NY St BJ 82, 83 [July/Aug. 2011], citing
Horowitz v Upjohn Co., 149 AD2d 467). We can only presume that the
Chief Administrator of the Courts was aware of CPLR 3113 (c) when the
Uniform Rules regarding depositions were adopted and that the Chief
Administrator would not create a direct conflict with a statute.

     The long-standing practice of counsel for a nonparty witness
                                 -4-                          1466
                                                         CA 12-00809

objecting at a deposition is exemplified by the Second Department’s
decision in Horowitz. There, the Second Department stated that the
nonparty witness, a partner of the defendant physicians at the time
the infant plaintiff’s mother was their patient, was entitled to
refuse to answer questions that sought testimony in the nature of
opinion evidence (id. at 467-468). There was no discussion of CPLR
3113 (c) or the rules. The relief fashioned by the Second Department
“was favorable to the objections raised by counsel for the non[]party
at the deposition. The Second Department evinced no problem with the
participation of counsel for the nonparty at the deposition, thereby,
at the very least impliedly countenancing the practice” (Horowitz, 83
NY St BJ at 83 [emphasis added]).

     In our view, the result reached by the court here was reasonable.
It is beyond cavil that trial courts have broad discretion in
supervising discovery. For example, CPLR 3101 (b) provides that,
“[u]pon objection by a person entitled to assert the privilege,
privileged matters should not be obtainable.” That section suggests
that a nonparty may not be required to disclose privileged matter
whether it be at a deposition or at trial. The question of what
constitutes “privileged matter” is a significant legal one and we fail
to see how a nonparty witness at a deposition, without the benefit of
counsel, would be so knowledgeable as to assert the privilege in the
appropriate circumstance. Similarly, CPLR 3103 (a) authorizes a
court, on its own initiative, “or on motion of any party or of any
person from whom discovery is sought,” to issue a protective order
denying, limiting, conditioning or regulating the use of any
disclosure device. That section similarly would allow a nonparty
witness, as “any person from whom discovery is sought” (id.), to seek
a protective order conditioning the use of a deposition by allowing
the nonparty to have counsel at the deposition for the purpose of
raising appropriate objections.

     There is also the practical question faced by a nonparty at the
deposition, when the statute of limitations has not yet run against
that nonparty. Indeed, the decision in Thompson encourages a
plaintiff, faced with commencing an action against several defendants,
whether in the medical malpractice realm or some other area of law
(see Alba v New York City Tr. Auth., 37 Misc 3d 838 [Labor Law]), to
name the seemingly least culpable party as a defendant and depose
ostensibly more culpable parties, with the idea that information,
perhaps incriminating and always under oath, may be gleaned from the
“nonparties” who do not have the right to have counsel present.

     In conclusion, we do not believe that there is a direct and
obvious conflict between CPLR 3113 (c) and the Uniform Rules, and we
further conclude that the court did not abuse its discretion in
allowing the nonparty witness here to have counsel present at the
deposition for a limited purpose. We therefore would affirm the
order.

Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
