Allstate Insurance Company et al v. Yadgarov et al

Filing 413

ORDER granting in part and denying in part 407 Motion for Discovery; SCHEDULING ORDER: As discussed in the attached Memorandum and Order, Plaintiffs at 407 move for discovery concerning Ms. Alena Kuturova-Pidgurskyy, and the Court understands Ms. Kuturova-Pidgurskyy to be moving for an order of protection to excuse her from complying with Plaintiffs' discovery requests and this Court's Orders. Plaintiffs' motion for discovery is granted to the extent that by 3/30/2015, Ms. Kuturova-Pidgurskyy is ordered to release and/or authorize Dr. Tulchinskiy's release of all medical records, treatment notes and findings related to the purported medical condition preventing her from testifying (the "Medical Records" ). On or before 4/2/2015, Dr. Tulchinskiy is ordered to produce the Medical Records to Plaintiffs by hand delivering or mailing them by overnight or certified mail to Plaintiffs' counsel, Sandra Burgos, Stern & Montana, LLP, Trinity Centre, 115 Broadway, New York, NY 10006. The Medical Records are deemed subject to the Confidentiality Agreement already entered into by the Parties. See 350 . In addition, a hearing concerning Ms. Kuturova-Pidgurskyy's medical condition and a bility to testify in this case is scheduled for 4/8/2015 at 10:30 AM in Courtroom 504 North, United States District Court for the Eastern District of New York, 225 Cadman Plaza East, Brooklyn, New York 11201, before Magistrate Judge Vera M. Scanlon. Plaintiffs and Ms. Kuturova-Pidgurskyy are ordered to attend in person. Ms. Kuturova-Pidgurskyy may have Dr. Tulchinskiy appear in person to testify on her behalf. If Dr. Tulchinskiy is going to appear, Ms. Kuturova-Pidgurskyy must give Plaintiffs and the Court at least two days' notice of her intent to have him appear. Thus, to the extent Plaintiffs sought to require Dr. Tulchinskiy's appearance, their motion is denied. Finally, in light of the discovery hearing, the Court defer s its decision as to Ms. Kuturova-Pidgurskyy's motion for a protective order. Ms. Kuturova-Pidgurskyy is again informed that her failure to comply with this Court's Orders may result in an award of monetary sanctions and/or her possible arrest by the United States Marshals Service to ensure her appearance at the Court's hearings and/or depositions. Ordered by Magistrate Judge Vera M. Scanlon on 3/25/2015. (Rice, Liane)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ALLSTATE INSURANCE COMPANY,
:
:
ALLSTATE INDEMNITY COMPANY,
ALLSTATE PROPERTY & CASUALTY
:
INSURANCE COMPANY, ALLSTATE FIRE & :
CASUALTY INSURANCE COMPANY, and
:
:
NORTHBROOK INDEMNITY COMPANY,
:
:
Plaintiffs,
:
:
-against:
:
VLADIMIR NAZAROV, MARK
:
DANILOVICH, DANIL TROFIMOV,
:
VLADISLAV AGUVAYEV, MICHAEL
ZAVRAZHIN, KONSTANTIN MARKEVICH, :
:
VIKTORIYA FITSAYLO, RAFAEL
:
MARKSUNOV aka Rafael Maksumov,
:
MARGARITA AKMALOVA, MARIFAT
:
DAVLATKHONOVA, OLEG SIMAKOV,
:
GRIGOL APRESYANTSI, RIGHT AID
:
MEDICAL SUPPLY CORP., GREENWAY
:
MEDICAL SUPPLY CORP., ACTIVE CARE
:
MEDICAL SUPPLY CORP., COMPLETE
EQUIPMENT, INC., EQUIPLUS, INC., METRO :
:
HEALTH PRODUCTS, INC, FRAZIER
:
TRADING COMPANY, INC., DEVONIAN,
:
INC., MAJOR MARKET MERCHANDISE,
:
INC., MEM WHOLESALE, INC., NEECOM
DISTRIBUTORS, INC., ROPA, INC., VIRRA :
:
WHOLESALE, INC., VZ GROUP, INC.,
:
MEDCURE SUPPLIES, INC., AMERICAN
MOBILITY MEDICAL, INC., HONO OFFICE :
SUPPLY, INC., WEST COAST, INC., A TO Z :
:
WHOLESALE, INC., BULLS EYE
WHOLESALE, INC., GRIGOL SUPPLY, INC., :
:
ONE STOP WHOLESALE, INC., TNM
WHOLESALE, INC., JOHN DOES 1 through 20, :
:
ABC CORPORATIONS 1 through 20, and
:
RUSSELL IONIN,
:
:
Defendants.
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Vera M. Scanlon, United States Magistrate Judge:
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ORDER
No. 11 Civ. 6187 (PKC) (VMS)

Plaintiffs Allstate Insurance Company, Allstate Indemnity Company, Allstate Property &
Casualty Insurance Company, Allstate Fire & Casualty Insurance Company, and Northbrook
Indemnity Company (collectively, “Plaintiffs” or “Allstate”) move for discovery concerning Ms.
Alena Kuturova-Pidgurskyy (“Ms. Kuturova-Pidgurskyy”), a non-party witness who Plaintiffs
intend to question concerning the alleged spoliation of evidence in this case. Mot. for Discovery,
ECF No. 407. Ms. Kuturova-Pidgurskyy is not represented by counsel1 and, as described below,
the Court understands her to be moving for an order of protection to excuse her from complying
with Plaintiff’s discovery requests and this Court’s Orders. For the reasons stated herein, the
Court (1) grants in part and denies in part Plaintiffs’ motion for discovery, and (2) defers
ruling on Ms. Kuturova-Pidgurskyy’s motion for a protective order until discovery has been
conducted and a hearing held.
I.

BACKGROUND

As this Court has previously noted, Ms. Kuturova-Pidgurskyy failed to appear for her
September 29, 2014 and March 3, 2015 depositions. See Order, Mar. 11, 2015, ECF (describing
the history of Ms. Kuturova-Pidgurskyy’s noncompliance with Court Orders).2 The Court
ordered that Ms. Kuturova-Pidgurskyy sit for her deposition prior to April 17, 2015, and further
ordered that she attend one of two spoliation hearing dates on April 17, 2015 and April 27, 2015.
Order, Mar. 13, 2015, ECF. Since Ms. Kuturova-Pidgurskyy previously requested that the Court
excuse her failure to attend the September 29, 2014 deposition based on an alleged medical
condition related to her pregnancy, see Scheduling Order, Oct. 23, 2014, ECF; Scheduling Order,
1

Although it was originally unclear whether Ms. Kuturova-Pidgurskyy was represented by
Gregory Morvillo, Esq., see, e.g., Scheduling Order, Oct. 16, 2014, ECF, no attorney has
appeared on Ms. Kuturova-Pidgurskyy’s behalf.
2

Plaintiffs also moved for sanctions against Ms. Kuturova-Pidgurskyy, Mot. for Attorney Fees,
ECF No. 404; that motion will not be addressed in this Order.
2

Oct. 27, 2014, ECF, and she subsequently told Plaintiffs and Chambers that alleged childcare
issues prevented her attendance at the March 3, 2015 deposition, see Mot. for Discovery at 2, the
Court ordered that she provide a doctor’s note to substantiate any request based on an alleged
medical condition for further modification of the deposition and hearing schedule. Order, Mar.
13, 2015, ECF.
On March 17, 2015, Dr. Mikhail Tulchinskiy of Ability Mental Health Counseling, P.C.,
102-30 Queens Boulevard, Forest Hills, New York 11375,3 submitted a letter on Ms. KuturovaPidgurskyy’s behalf. Tulchinskiy Letter, ECF No. 406. The Court has filed this letter under
seal, accessible by the Court and case participants only, as it contains some personal medical
information. Id. In relevant part, the letter states that, on March 15, 2015, Dr. Tulchinskiy
diagnosed Ms. Kuturova-Pidgurskyy with a condition that allegedly renders her, for at least the
next three months, “unable to engage in competitive participation in deposition and hearing
required activities.” Id. Although Ms. Kuturova-Pidgurskyy has not herself filed any letter or
request for relief, the Court will construe Dr. Tulchinskiy’s letter as a motion by Ms. KuturovaPidgurskyy to be excused from sitting for her deposition and attending the April hearing. Fed. R.
Civ. P. 26(c)(1) (“A party or any person from whom discovery is sought may move for a
protective order in the court where the action is pending . . . .”).
The Court allowed any Party wishing to be heard as to Ms. Kuturova-Pidgurskyy’s
availability to file a letter by March 20, 2015. In addition to publicly filing their motion for
discovery, Plaintiffs filed under seal a supplemental letter that addressed Dr. Tulchinskiy’s letter

3

According to Plaintiffs, “[o]n information and belief, Mikhail Tulchinskiy is a PhD whose
office address is a multi-disciplinary clinic that treats patients and seeks reimbursement pursuant
to the No-fault Law.” Pls. Supp. Letter at 1.
3

in more detail. Pls. Supp. Letter, ECF No. 409. Defendants have not filed any letter on this
issue.
II.

ANALYSIS

A person or party seeking a protective order bears the burden of demonstrating that there
is good cause for such an order. See, e.g., Brown v. Astoria Fed. Sav. & Loan Ass’n, 444 F.
App’x 504, 505 (2d Cir. 2011); John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D.
184, 186 (S.D.N.Y. 2014); Graham v. City of New York, No. 08 Civ. 3518 (KAM) (RML), 2010
WL 3034618, at *3 (E.D.N.Y. Aug. 3, 2010); Uto v. Job Site Servs. Inc., 269 F.R.D. 209, 211
(E.D.N.Y. 2010); Duling v. Gristede’s Operating Corp., 266 F.R.D. 66, 71 (S.D.N.Y. 2010). The
movant must show a clearly-defined and significant harm. John Wiley & Sons, 298 F.R.D. at
186-87. “[T]he court ultimately weighs the interests of both sides in fashioning an order.”
Duling, 266 F.R.D. at 71. Federal Rule of Civil Procedure (“Rule”) 26 “is not a blanket
authorization for the court to prohibit disclosure of information whenever it deems it advisable to
do so, but is rather a grant of power to impose conditions on discovery in order to prevent injury,
harassment, or abuse of the court’s processes.” Bridge C.A.T. Scan Associates v. Technicare
Corp., 710 F.2d 940, 944-45 (2d Cir. 1983) (emphasis omitted); see John Wiley & Sons, 298
F.R.D. at 187 (same).
Since the Court’s October 27, 2014 Order designating Ms. Kuturova-Pidgurskyy as a
material witness, she has taken several actions that suggest she does not intend to testify or to
comply with this Court’s Orders. She has proffered a myriad of changing excuses as to why she
would be unable to appear. See Mot. for Discovery at 2. Just days after the Court admonished
her that “any request based on medical reasons must be accompanied by a doctor’s note,” Order,
Mar. 13, 2015, ECF, she presented a new medical excuse, never before revealed to Plaintiffs or

4

the Court, see Mot. for Discovery at 2, and tailored her responses specifically to the Court’s
request. The circumstances raise serious doubts as to the legitimacy of Ms. KuturovaPidgurskyy’s purported diagnosis. Indeed, just two days after she was instructed that any request
based on a medical condition must be accompanied by a doctor’s note, she purportedly
commenced treatment with Dr. Tulchinskiy. Within two days of beginning to treat Ms.
Kuturova-Pidgurskyy, Dr. Tulchinskiy made his diagnosis and submission to the Court, without
any reference to Ms. Kuturova-Pidgurskyy’s medical history, tests performed or evaluation made
in arriving at the purported diagnosis; without the inclusion of any underlying medical records;
and without any reference to the start-date or onset of Ms. Kuturova-Pidgurskyy’s purported
illness or the alleged precipitating event. Rather than substantiating any previously diagnosed
condition that might explain Ms. Kuturova-Pidgurskyy’s past and present noncompliance, Ms.
Kuturova-Pidgurskyy’s medical note about her presently diagnosed condition lacked any indices
of reliability and provided the Court with only a vague description of her condition and tentative
prognosis.
Moreover, it is noteworthy that despite Ms. Kuturova-Pidgurskyy’s repeated protestations
that she cannot travel outside of Brooklyn to testify because she does not have child care,4 Dr.
Tulchinskiy’s office is located in Forest Hills, Queens, a distance of approximately fifteen to
twenty miles (if traveling by car) from Ms. Kuturova-Pidgurskyy’s home in Brooklyn. It is also
worth noting that, assuming Ms. Kuturova-Pidgurskyy continues to be treated by Dr.
Tulchinskiy, he has recommended a three-month course of treatment which (assuming she is
treated at the Queens office) would require further and repeated travel outside of Brooklyn. Dr.
4

Of course, the spoliation hearing is scheduled to occur in Brooklyn, and if the location of the
deposition were the only barrier to Ms. Kuturova-Pidgurskyy’s participation, the Court might
require the deposition to occur in Brooklyn at the courthouse or other location arranged by
counsel.
5

Tulchinskiy fails to set forth what, if any, impact such travel would have on Ms. KuturovaPidgurskyy’s health or on her ability to care for her child, her previously stated reason for being
unable to travel.
In order to test the merits of Ms. Kuturova-Pidgurskyy’s explanation, Plaintiffs are
permitted limited discovery as to Ms. Kuturova-Pidgurskyy’s purported medical condition, as it
relates to her availability in this case. See Torres v. Levesque, 52 F. App’x 155, 156 (2d Cir.
2002) (upholding the dismissal of an action where the district court had “rejected [the plaintiff’s]
argument that his medical condition prohibited him from sitting for a lengthy deposition because
he had provided no medical support for his claim”); cf. Burgie v. Euro Brokers, Inc., No. 05 Civ.
968 (CPS) (KAM), 2006 WL 845400, at *12 (E.D.N.Y. Mar. 30, 2006) (considering, in relation
to a motion for sanctions against a plaintiff who failed to comply with the discovery schedule
and other court orders, “the nature of the [plaintiff’s alleged] illness and its impact on one’s
ability to comply with the Court’s orders, and supporting evidence such as a sworn statement or
other medical documentation to support the claim of illness”), aff’d, No. 05 Civ. 0968 (CPS),
2007 WL 1704178 (E.D.N.Y. June 12, 2007). Notwithstanding that Ms. Kuturova-Pidgurskyy
has provided some evidence of a medical condition in the form of a doctor’s note, in light of her
sudden mention of a medical condition and the lack of detail in Dr. Tulchinskiy’s letter,
Plaintiffs should be allowed a full and fair opportunity to examine and challenge the claims of
this material witness who is refusing to testify.
Moreover, Ms. Kuturova-Pidgurskyy has demonstrated throughout these proceedings a
pattern of evasiveness and avoidance of appearing for Court-ordered depositions and spoliation
hearings, such that her medical excuse is highly suspect and warrants further inquiry by the
Court prior to any decision on her motion for a protective order.

6

Therefore, Plaintiffs’ motion for discovery is granted to the extent that by March 30,
2015, Ms. Kuturova-Pidgurskyy is ordered to release and/or authorize Dr. Tulchinskiy’s release
of all medical records, treatment notes and findings related to the purported medical condition
preventing her from testifying (the “Medical Records”). Mot. for Discovery at 4. On or before
April 2, 2015, Dr. Tulchinskiy is ordered to produce the Medical Records to Plaintiffs by hand
delivering or mailing them by overnight or certified mail to Plaintiffs’ counsel, Sandra Burgos,
Stern & Montana, LLP, Trinity Centre, 115 Broadway, New York, NY 10006. The Medical
Records are deemed subject to the Confidentiality Agreement already entered into by the Parties.
See ECF No. 350.
In addition, a hearing concerning Ms. Kuturova-Pidgurskyy’s medical condition and
ability to testify in this case is scheduled for April 8, 2015 at 10:30 A.M. in Courtroom 504 N of
the United States District Court for the Eastern District of New York, 225 Cadman Plaza East,
Brooklyn, New York 11201, before Magistrate Judge Vera M. Scanlon. Plaintiffs and Ms.
Kuturova-Pidgurskyy are ordered to attend in person. Ms. Kuturova-Pidgurskyy may have Dr.
Tulchinskiy appear in person to testify on her behalf. If Dr. Tulchinskiy is going to appear, Ms.
Kuturova-Pidgurskyy must give Plaintiffs and the Court at least two days’ notice of her intent to
have him appear. Thus, to the extent Plaintiffs sought to require Dr. Tulchinskiy’s appearance,
their motion is denied.5 Finally, in light of the discovery hearing, the Court defers its decision
as to Ms. Kuturova-Pidgurskyy’s motion for a protective order.
Ms. Kuturova-Pidgurskyy is again informed that her failure to comply with this
Court’s Orders may result in an award of monetary sanctions and/or her possible arrest by

5

In addition, to the extent Plaintiffs requested that Dr. Tulchinskiy’s letter be unsealed as to case
participants, that request is deemed moot as the letter has already been made available to case
participants.
7

the United States Marshals Service to ensure her appearance at the Court’s hearings
and/or depositions.
Dated: Brooklyn, New York
March 25, 2015

Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge

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