Bermejo v. New York City Health & Hospitals Corp., 2015 NY Slip Op 08374

Background

Plaintiff Manuel Bermejo sued for personal injuries after a scaffold fall; defendants Amsterdam & 76th and Ibex were found liable on Labor Law §240; trial proceeded on damages.
Defense retained orthopedist Dr. Michael Katz to perform two IMEs of plaintiff; plaintiff attended with counsel Patrick Hackett and paralegal Yury Ramirez (interpreter).
Hackett secretly videotaped the second IME on his phone without court permission or notice to defense; he did not disclose the recording before trial as required by CPLR 3101(i).
At the damages trial, cross‑examination and courtroom events led to the paralegal revealing the existence of the video; Hackett then admitted he made it, the jury was excused and a mistrial was declared.
The trial judge repeatedly accused Dr. Katz of lying/perjury on the record and threatened criminal referral; Dr. Katz’s counsel indicated he would not let Katz testify voluntarily at retrial.
Defendants moved post‑mistrial for: (1) a new IME by a defense orthopedist; (2) costs against plaintiff’s counsel under 22 NYCRR 130‑1.1; and (3) disqualification of plaintiff’s counsel. Supreme Court denied these branches; defendants appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel could videotape an IME without court permission	Hackett: recording was permissible (to protect counsel and rebut Dr. Katz); no need to seek permission	Videotaping required court approval; surreptitious taping improper	Court: Videotaping IME without court permission is improper; permission should be sought and granted only for special circumstances
Whether CPLR 3101(i) required pretrial disclosure of the recording	Hackett: recording of a nonparty expert or work product need not be disclosed unless intended for use	Defendants: CPLR 3101(i) mandates disclosure of any video involving a party, regardless who made it or intent to use it	Court: CPLR 3101(i) requires full disclosure of films/video involving a party (plaintiff was on tape); nondisclosure violated statute
Whether defendants were entitled to a new IME after mistrial	Hackett/plaintiff: mistrial caused by Dr. Katz’s alleged lying; no basis for new IME	Defendants: secret taping and its revelation made Dr. Katz unwilling to testify voluntarily; unusual circumstances justify new IME	Court: Unusual and unanticipated circumstances (Dr. Katz effectively unavailable due to courtroom treatment and secret recording) justify a new IME by defendants’ orthopedist
Whether plaintiff’s counsel should bear sanctions/costs and be disqualified	Plaintiff: mistrial resulted from Dr. Katz’s perjury; counsel acted to expose truth	Defendants: Hackett caused the mistrial by surreptitious taping and failure to disclose; conduct was frivolous and prejudicial; counsel became potential witness	Court: Hackett’s conduct caused the mistrial and violated CPLR 3101(i); award of costs against Hackett and his firm under 22 NYCRR 130‑1.1 was appropriate; disqualification denied as academic because the tape is inadmissible

Key Cases Cited

Lamendola v. Slocum, 148 A.D.2d 781 (3d Dep't) (trial court may deny videotaping IME; videotaping allowed only for special and unusual circumstances)
Flores v. Vescera, 105 A.D.3d 1340 (2d Dep't) (refusal to permit videotaping IME where special circumstances not shown)
Orsos v. Hudson Tr. Corp., 95 A.D.3d 526 (2d Dep't) (defendant may compel physical examination under CPLR 3121)
Giordano v. Wei Xian Zhen, 103 A.D.3d 774 (2d Dep't) (post‑note‑of‑issue events that merely permit impeachment do not alone warrant new IME)
Carrington v. Truck‑Rite Dist. Sys. Corp., 103 A.D.3d 606 (2d Dep't) (similar limitation on requiring additional IME after note of issue)
DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184 (N.Y. 1992) (disclosure policy substitutes honesty for gamesmanship)
Tai Tran v. New Rochelle Hosp. Med. Ctr., 99 N.Y.2d 383 (N.Y. 2002) (CPLR 3101(i) requires disclosure regardless of intent to use)