Meshoyrer v Karen E. Thornton, M.D., P.C. 2026 NY Slip Op 31026(U) March 17, 2026 Supreme Court, New York County Docket Number: Index No. 153272/2023 Judge: Matthew V. Grieco Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1532722023.NEW_YORK.001.LBLX000_TO.html[03/25/2026 3:45:47 PM] INDEX NO. 153272/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/18/2026
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MATTHEW V. GRIECO PART 30M Justice --------------------------------------------------------------------------X INDEX NO. 153272/2023 SVETLANA MESHOYRER, MICHAEL KAPLAN MOTION DATE 10/09/2025 Plaintiffs, MOTION SEQ. NO. -----=--00.:_2"------ - V - DECISION + ORDER ON KAREN E. THORNTON, M.D., P.C., KAREN THORNTON, MOTION Defendants. AND CROSS-MOTION
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The following e-filed documents, listed by NYSCEF document number (Motion 002) 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 37, 38 were read on this motion and cross-motion TO PRECLUDE/COMPEL
Upon the foregoing documents, and for the reasons stated infra, plaintiffs'
motion is denied, and defendants' cross-motion is granted in part.
Plaintiff Svetlana Meshoyrer, with her husband, plaintiff Michael Kaplan, suing
derivatively, commenced this action for personal injuries allegedly sustained as the
result of being struck by improperly secured metal tentpoles of a mobile COVID-19
testing site operated by defendants, Karen E. Thornton, M.D., P.C. and Karen Thornton
(NYSCEF Doc. No. 1 [summons and complaint]).
About one hour into Meshoyrer's deposition, counsel were unable to resolve their
competing views of the permissible scope of questioning (NYSCEF Doc. No. 25 [EBT
transcript]), and this motion practice ensued.
Plaintiffs move pursuant to CPLR 3103 for a protective order to limit or preclude
any further deposition of Meshoyrer (NYSCEF Doc. No. 22, 24).
Defendants cross-move: (1) pursuant to CPLR 3103 to compel Meshoyrer to
appear for further deposition without interference; (2) pursuant to CPLR 8501(a) and
15327212023 MESHOYRER, SVETLANA ET AL vs. KAREN E. THORNTON, M.D., P.C. ET AL Page 1 of 5 Motion No. 002
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8503 to direct plaintiffs to post security for costs; and (3) pursuant to 22 NYCRR 130-1.1
for sanctions for frivolous conduct (NYSCEF Doc. Nos. 26-27).
Plaintiffs complain that defense counsel repeatedly asked Meshoyrer the same
questions after she gave a response, and that they improperly tried to question her about
her medical records. Defendants maintain that their queries were not repetitious but
sought different information, and that they were using the medical records to confront
Meshoyrer and question her on matters within her ken. According to plaintiffs,
defendants were nevertheless obligated to continue with the rest of the deposition, and
their unilateral decision to terminate it constituted a waiver of any right to continue it
now.
CPLR 3103(a) provides that:
The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.
Although the better course would have been for defendants to continue with as
much of the deposition as they could, particularly if they had other topics to explore, it is
clear that the parties had reached an impasse, and both explicitly noted they would need
court rulings to resolve it.
The Appellate Division cases cited by plaintiffs are distinguishable (see Dresdner
Bank, Aktiengesellschaft v Edelman, 133 AD2d 19, 20 [1 st Dept 1987] ["By twice
refusing plaintiffs offer of a deposition of its witness, the defendant waived the right to
take such a deposition"]; Cosenza v Malvin, 158 AD2d 653 [2d Dept 1990] [defendant
waived the right to further depositions by serving a demand for a note of issue]). The
153272/2023 MESHOYRER, SVETLANA ET AL vs. KAREN E. THORNTON, M.D., P.C. ET AL Page 2 of 5 Motion No. 002
2 of 5 [* 2] INDEX NO. 153272/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/18/2026
New York County Supreme Court case cited by plaintiffs, Yang v Knights Genesis Group
(_ Misc3d _, 2023 NY Slip Op 3077o[U] [Sup Ct, NY County 2023]) supports the
proposition that any consequence depends on the circumstances; there, two individuals
who had baselessly cancelled their depositions were directed to appear or suffer the
striking of their pleadings, while the further deposition of another person was precluded
because the requesting side had unilaterally cancelled the original deposition after she
had travelled at great expense. To the extent Williams v Hicks (31 Misc3d 605 [Sup Ct,
Dutchess County 2011]) could be read as evincing a rule of automatic forfeiture, it is not
binding on this Court, which declines to follow it (see CPLR 3113[b] ["the deposition
shall proceed subject to the right of a person to apply for a protective order. The
deposition shall be taken continuously and without unreasonable adjournment, unless
the court otherwise orders"]; 22 NYCRR 221.2 ["If the deponent does not answer a
question the examining party shall have the right to complete the remainder of the
deposition"]). Accordingly, plaintiffs' request to preclude any further deposition of
Meshoyrer is denied, and defendants' application to compel a continued deposition is
granted.
Regarding the proper scope of a continued examination, plaintiffs are correct that
Meshoyrer should not be questioned about expert medical opinions on which, as a lay
person, she is not qualified to address, but that does not mean defendants are wholesale
prohibited from asking her any questions about her own medical records (see Huff v
Rodriguez, 64 AD3d 1221, 1222-1223 [4th Dept 2009] [proper to use witness's medical
records in cross-examining her concerning certain medications, in order to establish
whether they affected her ability to perceive and remember events in connection with
the accident], app withdrawn 16 NY3d 741 [2011]; Mohamed v Cellino & Barnes, P.C., 153272/2023 MESHOYRER, SVETLANA ET AL vs. KAREN E. THORNTON, M.D., P.C. ET AL Page 3 of 5 Motion No. 002
3 of 5 [* 3] INDEX NO. 153272/2023 I' NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/18/2026
300 AD2d 1116 [4th Dept 2002] [defendant properly allowed to cross-examine plaintiff
with respect to her statements in a medical record], lv denied 99 NY2d 510 [2003]).
Counsel are directed to resume and complete the deposition, with civility to each
other and the witness.
Plaintiffs have not raised any arguments in opposition to defendants' application
that, because plaintiffs are not residents of New York State and have not been granted
poor person relief, they be required to post security for costs in the amount of $500
(CPLR 8501[a], 8503; see Clement v Durban, 32 NY3d 337 [2018], cert denied 587 US
1027 [2019]).
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Meshoyrer v Karen E. Thornton, M.D., P.C. 2026 NY Slip Op 31026(U) March 17, 2026 Supreme Court, New York County Docket Number: Index No. 153272/2023 Judge: Matthew V. Grieco Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1532722023.NEW_YORK.001.LBLX000_TO.html[03/25/2026 3:45:47 PM] INDEX NO. 153272/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/18/2026
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MATTHEW V. GRIECO PART 30M Justice --------------------------------------------------------------------------X INDEX NO. 153272/2023 SVETLANA MESHOYRER, MICHAEL KAPLAN MOTION DATE 10/09/2025 Plaintiffs, MOTION SEQ. NO. -----=--00.:_2"------ - V - DECISION + ORDER ON KAREN E. THORNTON, M.D., P.C., KAREN THORNTON, MOTION Defendants. AND CROSS-MOTION
---------------------------------,-----------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 37, 38 were read on this motion and cross-motion TO PRECLUDE/COMPEL
Upon the foregoing documents, and for the reasons stated infra, plaintiffs'
motion is denied, and defendants' cross-motion is granted in part.
Plaintiff Svetlana Meshoyrer, with her husband, plaintiff Michael Kaplan, suing
derivatively, commenced this action for personal injuries allegedly sustained as the
result of being struck by improperly secured metal tentpoles of a mobile COVID-19
testing site operated by defendants, Karen E. Thornton, M.D., P.C. and Karen Thornton
(NYSCEF Doc. No. 1 [summons and complaint]).
About one hour into Meshoyrer's deposition, counsel were unable to resolve their
competing views of the permissible scope of questioning (NYSCEF Doc. No. 25 [EBT
transcript]), and this motion practice ensued.
Plaintiffs move pursuant to CPLR 3103 for a protective order to limit or preclude
any further deposition of Meshoyrer (NYSCEF Doc. No. 22, 24).
Defendants cross-move: (1) pursuant to CPLR 3103 to compel Meshoyrer to
appear for further deposition without interference; (2) pursuant to CPLR 8501(a) and
15327212023 MESHOYRER, SVETLANA ET AL vs. KAREN E. THORNTON, M.D., P.C. ET AL Page 1 of 5 Motion No. 002
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8503 to direct plaintiffs to post security for costs; and (3) pursuant to 22 NYCRR 130-1.1
for sanctions for frivolous conduct (NYSCEF Doc. Nos. 26-27).
Plaintiffs complain that defense counsel repeatedly asked Meshoyrer the same
questions after she gave a response, and that they improperly tried to question her about
her medical records. Defendants maintain that their queries were not repetitious but
sought different information, and that they were using the medical records to confront
Meshoyrer and question her on matters within her ken. According to plaintiffs,
defendants were nevertheless obligated to continue with the rest of the deposition, and
their unilateral decision to terminate it constituted a waiver of any right to continue it
now.
CPLR 3103(a) provides that:
The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.
Although the better course would have been for defendants to continue with as
much of the deposition as they could, particularly if they had other topics to explore, it is
clear that the parties had reached an impasse, and both explicitly noted they would need
court rulings to resolve it.
The Appellate Division cases cited by plaintiffs are distinguishable (see Dresdner
Bank, Aktiengesellschaft v Edelman, 133 AD2d 19, 20 [1 st Dept 1987] ["By twice
refusing plaintiffs offer of a deposition of its witness, the defendant waived the right to
take such a deposition"]; Cosenza v Malvin, 158 AD2d 653 [2d Dept 1990] [defendant
waived the right to further depositions by serving a demand for a note of issue]). The
153272/2023 MESHOYRER, SVETLANA ET AL vs. KAREN E. THORNTON, M.D., P.C. ET AL Page 2 of 5 Motion No. 002
2 of 5 [* 2] INDEX NO. 153272/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/18/2026
New York County Supreme Court case cited by plaintiffs, Yang v Knights Genesis Group
(_ Misc3d _, 2023 NY Slip Op 3077o[U] [Sup Ct, NY County 2023]) supports the
proposition that any consequence depends on the circumstances; there, two individuals
who had baselessly cancelled their depositions were directed to appear or suffer the
striking of their pleadings, while the further deposition of another person was precluded
because the requesting side had unilaterally cancelled the original deposition after she
had travelled at great expense. To the extent Williams v Hicks (31 Misc3d 605 [Sup Ct,
Dutchess County 2011]) could be read as evincing a rule of automatic forfeiture, it is not
binding on this Court, which declines to follow it (see CPLR 3113[b] ["the deposition
shall proceed subject to the right of a person to apply for a protective order. The
deposition shall be taken continuously and without unreasonable adjournment, unless
the court otherwise orders"]; 22 NYCRR 221.2 ["If the deponent does not answer a
question the examining party shall have the right to complete the remainder of the
deposition"]). Accordingly, plaintiffs' request to preclude any further deposition of
Meshoyrer is denied, and defendants' application to compel a continued deposition is
granted.
Regarding the proper scope of a continued examination, plaintiffs are correct that
Meshoyrer should not be questioned about expert medical opinions on which, as a lay
person, she is not qualified to address, but that does not mean defendants are wholesale
prohibited from asking her any questions about her own medical records (see Huff v
Rodriguez, 64 AD3d 1221, 1222-1223 [4th Dept 2009] [proper to use witness's medical
records in cross-examining her concerning certain medications, in order to establish
whether they affected her ability to perceive and remember events in connection with
the accident], app withdrawn 16 NY3d 741 [2011]; Mohamed v Cellino & Barnes, P.C., 153272/2023 MESHOYRER, SVETLANA ET AL vs. KAREN E. THORNTON, M.D., P.C. ET AL Page 3 of 5 Motion No. 002
3 of 5 [* 3] INDEX NO. 153272/2023 I' NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/18/2026
300 AD2d 1116 [4th Dept 2002] [defendant properly allowed to cross-examine plaintiff
with respect to her statements in a medical record], lv denied 99 NY2d 510 [2003]).
Counsel are directed to resume and complete the deposition, with civility to each
other and the witness.
Plaintiffs have not raised any arguments in opposition to defendants' application
that, because plaintiffs are not residents of New York State and have not been granted
poor person relief, they be required to post security for costs in the amount of $500
(CPLR 8501[a], 8503; see Clement v Durban, 32 NY3d 337 [2018], cert denied 587 US
1027 [2019]). Plaintiffs are therefore directed to post security within 30 days, during
which time the action is stayed (see CPLR 8502).
Finally, on this record, plaintiffs' conduct has not been frivolous within the
meaning of 22 NYCRR 130-1.1(c), in that their arguments are not "completely without
merit in law," and their actions were not "undertaken primarily to delay or prolong the
resolution of the litigation, or to harass or maliciously injure another."
It is therefore
ORDERED that plaintiffs' motion for a protective order is denied, and it is
further
ORDERED that defendants' cross-motion to compel is granted; and it is further
ORDERED that the deposition on oral examination of plaintiff Svetlana
Meshoyrer by defendants shall proceed on or before June 5, 2026; and it is further
ORDERED that the application of defendants to direct the posting of security for
costs by plaintiffs is granted; and it is further
ORDERED that defendants' cross-motion for sanctions pursuant to Part 130 of
the Rules of the Chief Administrator is denied; and it is further 153272/2023 MESHOYRER, SVETLANA ET AL vs. KAREN E. THORNTON, M.D., P.C. ET AL Page 4 of 5 Motion No. 002
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ORDERED that, within 30 days from the date of service of a copy of this order
with notice of entry, plaintiffs either (i) pay into the Court the sum of $500.00 (payable
in cash, or by credit card (Mastercard, Visa, or American Express), certified check, or
bank check) to be applied to the payment of costs, if any, awarded against plaintiffs, or
(ii), at their election, file with the Clerk of the Court an undertaking with sufficient
surety in a like amount to be applied to the payment of costs, if any, awarded against
plaintiffs in this action; and it is further
ORDERED that such filing of an undertaking with the Clerk of the Court shall be
made in accordance with the procedures set forth in the Protocol on Courthouse and
County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing"
page on the court's website); and it is further
ORDERED that, within that 30-day period, plaintiffs serve upon the attorneys for
defendants a written notice of the payment or of the filing of such undertaking; and it is
ORDERED that all further proceedings, except to review this order, are stayed for
30 days from the date of service of a copy of this order with notice of entry (CPLR
8502); and it is further
ORDERED that counsel are directed to appear for a status conference in Room
623,111 Centre Street, New York, New York on June 18, 2026, at 10:00 AM.
This constitutes the decision and order of the Court.
3/17/2026 DATE MATTHEW V. GRIECO, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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