On November 7-8, 2013, the Office of Court Administration posted three informative decisions by Justice Joan B. Lefkowitz, (Supreme Court, Westchester County) that addressed discovery disputes relating to non-party witnesses:
- Giacinto v. Shapiro, 2013 NY Slip Op 32818(U) (February 13, 2013)
- DiBenedetto v. Zboyan, 2013 NY Slip Op 32770(U) (August 26, 2013)
- Calarco v. Netherland Gardens Owners, Inc., 2013 NY Slip Op 32836(U) (September 16, 2013)
Giacinto involved an action by Benito Giacinto, as Administrator of the estate of Lucia Giacinto, to recover damages for medical malpractice and wrongful death of his wife, Lucia. The case involved an “application by defendants Michael Morelli, M.D. and Lawrence Hospital Center…for an order, pursuant to CPLR § 2308(b) compelling non-party witness Giovanna Sinno…to comply with the duly served subpoena and appear for her deposition or upon continued failure to appear for her deposition for a penalty as specified in CPLR § 2308(b).” Id at 1
The essence of the claim was “that defendants misdiagnosed the decedent’s medical condition and negligently prescribed a toxic combination of drugs resulting in toxicity, lactic acidosis and her death.” Id at 1-2
Defendants alleged that:
Mr. Giacinto appeared and was deposed by the attorneys for all of the defendants in this action on September 24, 2012. Movants state that at his deposition Mr. Giacinto was unable to provide any relevant information and that nearly all of his responses consisted of “I don’t know”, “I don’t remember”, or “my daughters know all of this information.”… Movants contend that Mr. Giacinto was unable to testify about the decedent’s medical history or medications…Additionally, movants state Mr. Giacinto testified that his daughters were with the decedent most of the time during her hospitalization and that they were the ones who primarily interacted with the decedent’s physicians…. Id at 2
Following the deposition of Mr. Giacinto:
On November 16, 2012, movants served non-party witness, Ms. Sinno, one of Mr. Giacinto’s daughters, with a subpoena to appear for her deposition on December 14, 2012. The parties were served with the subpoena and notice of deposition by mail on November 15, 2012. Movants allege that on December 13, 2012, they were advised by plaintiffs’ counsel that Ms. Sinno would not be appearing for her deposition scheduled for the next day, and in fact Ms. Sinno did not appear for her deposition. On December 18, 2012, the parties appeared for a compliance conference at which time movants aver that plaintiffs’ counsel acknowledged that he had advised Ms. Sinno not to appear for the deposition. A Discovery Motion Briefing Schedule was issued at that conference pursuant to which the instant motion is made. Id
Defendants argued that:
[P]ursuant to CPLR §2308, Ms. Sinno should be compelled to comply with the duly served subpoena as she improperly failed to appear for her deposition. Movants further argue that if a non-party witness who is subject to a non-judicial subpoena for a deposition does not intend to appear for the deposition, the appropriate remedy is for the non-party witness to challenge the subpoena in court and specify the grounds for their objection. Movants contend that Ms. Sinno has not objected to the service, validity or scope of the non-party subpoena served upon her by movants, but rather has chosen to, or was advised to, ignore the subpoena. Movants contend that the generally accepted convention which provides that non-party witnesses are produced after named defendants must give way in a situation such as this when the named plaintiff is unable to give testimony relevant to the lawsuit and the non-party witness and her two sisters are the only sources of testimony concerning such important issues as the decedent’s prior medical and medication history, her physical condition preceding her hospitalization and recollection of any conversations with decedent’s care providers during her hospitalization. Movants argue the information they seek is material and necessary in order to fully understand all the medical issues involved and to evaluate potential liability. Id
Plaintiff countered that:
[T]hey have always offered to produce Ms. Sinno, but had agreed to produce her only after the completion of the parties’ depositions. Plaintiffs argue that the CPLR clearly provides for depositions to go forward in the order in which they are noticed and that since Ms. Sinno’s deposition was noticed after those of defendants then those depositions must be completed prior to Ms Sinno’s. Id at 2-3
Justice Lefkowitz summarized the applicable law:
Generally speaking, CPLR §3101(a) requires “full disclosure of all matter material and necessary in the prosecution or defense of an action.” A party seeking disclosure from a non-party pursuant to CPLR §3101(a)(4) must state “circumstances or reasons” warranting discovery from the non-party (Tenore v. Tenore, 45 AD3d 571 [2d Dept 2007]; Smith v. Moore, 31 AD3d 628 [2d Dept 2006]; Matter of Lutz v. Goldstone, 31 AD3d 449 [2d Dept 2006]). The party must demonstrate the non-party discovery sought is material, necessary and unavailable by means other than the non-party (Kooper v. Kooper, 74 AD3d 6 [2d Dept 2010]; Kondratick v. Orthodox Church in America, 73 AD3d 708 [2d Dept 2010]). Id at 3
The Court found that:
A review of Mr. Giacinto’s deposition testimony clearly shows that he is unable to provide information concerning the decedent’s medical history, her physical condition, the medications she was taking prior to her hospitalization, or the interactions between the decedent and her care providers during her hospitalization. In Mr. Giacinto’s own words, the persons with this knowledge are his daughters, which includes Ms. Sinno. Movants are clearly entitled to Ms. Sinno’s deposition. Id
And Justice Lefkowitz concluded that the movants were entitled to take Ms. Sinno’s deposition because:
CPLR § 3106 provides in pertinent part that after the commencement of an action, any party may take the deposition of any person with the additional requirement that in the case of non-parties the notice to be served by a subpoena. A review of the subpoena and affidavits of service show that the subpoena was duly served upon Ms. Sinno and the parties to this action. Nothing in the record suggests that Ms. Sinno (or plaintiffs for that matter) moved to quash the subject subpoena, sought an order of protection or made any other requests for its withdrawal or modification…In fact, the only argument plaintiffs proffer in opposition is that they should be able to complete the depositions of the remaining defendants before Ms. Sinno can be deposed. In light of the circumstances of this case, especially Mr. Giacinto’s inability to provide any relevant testimony concerning the issues central to this case, the Court finds that movants are entitled to Ms. Sinno’s deposition and find plaintiffs’ arguments to the contrary unpersuasive. Id
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DiBenedetto arose out of a “motion by plaintiff for a protective order precluding the depositions of Lena DiBenedetto and Francis Phu and quashing the subpoenas served upon them pursuant to CPLR 2304 and 3102.” Id at 1
In the action:
Plaintiff seeks to recover damages for injuries allegedly sustained in a trip and fall while working as a U.S. Postal Service letter carrier. On March 15, 2010, he allegedly fell in a hole created by the defendant in the lawn on defendant’s property while covering another worker’s route. It is alleged defendant created a dangerous and hazardous condition on his property by removing trees or bushes…. Id
The Court summarized plaintiff’s argument:
Defendant served nonparty subpoenas dated July 1, 2013 on Lena DiBenedetto and Francis Phu. Plaintiff argues neither of the nonparties are witnesses. Plaintiff argues Lena DiBenedetto is plaintiff’s wife and there has been no showing that she has information relevant to the allegations in the action. Plaintiff has no information regarding who Francis Phu is or the basis for his testimony. The subpoenas served on the witnesses are defective, failing to give notice of the circumstances or reasons the depositions are sought (CPLR 3101[a]). Id
And defendant’s counter-argument:
In opposition, defendant argues Francis Phu is the letter carrier who delivered mail to defendant’s residence prior to and after the alleged incident. Defendant identified Mr. Phu during his deposition…Defendant seeks to depose Mr. Phu regarding his observations of the location of the alleged incident. Defendant contends that Mr. Phu is “in an excellent position” to see and know the location of the alleged hole since he delivered mail to the address for five years prior to the alleged incident. Defendant argues plaintiff did not use the concrete walkway, but walked on the lawn and the practices of another letter carrier at the same location are relevant to the defense…Defendant served a demand for a copy of plaintiff’s postal employee manual and handbook, and plaintiff responded he is unable to locate any employee manual or handbook that may have been issued to him…Defendant seeks to depose Mr. Phu regarding any employee rules and post office procedures pertaining to letter carriers. Defendant argues that deposition of plaintiff’s wife is relevant to plaintiff’s alleged injuries and loss of earnings claim. Id at 1-2
Justice Lefkowitz summarized the applicable law:
Pursuant to CPLR 3103[a], “[t]he court may at any time on its own initiative, or on motion of any party…make a protective order denying, limiting, conditioning or regulating the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the courts.” A party seeking disclosure from a nonparty pursuant to CPLR 3101[a][4] must demonstrate the nonparty discovery sought is material and necessary and must state the circumstances or reasons warranting discovery from such nonparty witness (Kondratick V. Orthodox Church in America, 73 AD3d 708 [2d Dept 2010]; Tenore v. Tenore, 45 AD3d 571 [2d Dept 2007]; Smith v. Moore, 31 AD3d 628 [2d Dept 2006]; Matter of Lutz v. Goldstone, 31 AD3d 449 [2d Dept 2006]). “A motion to quash is properly granted where the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty” (Kooper v. Kooper, 74 AD3d 6 [2d Dept 2010]). “As a matter of policy, nonparties ordinarily should not be burdened with responding to subpoenas for lawsuits in which they have no stake or interest unless the particular circumstances of the case require their involvement” (Kooper v. Kooper, 74 AD3d 6 [2d Dept 2010]). Whether a discovery demand is appropriate is a matter within the sound discretion of the court, which must balance competing interests (Kavanagh v. Ogden Allied Maintenance Corp., 92 NY2d 952 [1998]; Kooper v. Kooper, 74 AD3d 6 [2d Dept 2010]). Id at 2
And concluded that:
Defendant fails to demonstrate the deposition of Mr. Phu is material and necessary to the defense of this case (CPLR 3101[1], Dicenso v. Wallin, __ AD3d __, 2013 NY Slip Op 5612 [2d Dept 2013]). On May 17, 2013, defendant testified a tree was removed on the property twenty-five years ago, he filled in the space periodically for the last twenty five years, and he planted grass in the area which was six to eight inches wide….There is no showing on this motion that Mr. Phu has any information pertaining to the alleged hole at the property or postal employee procedures that cannot be obtained from other sources. Plaintiff’s counsel’s conclusory assertion that Mr. Phu can provide testimony relevant to the issue of liability is insufficient to warrant a nonparty deposition. Id
Defendant has demonstrated Lena DiBenedetto has information pertaining to plaintiff’s alleged injuries that is material and necessary to the prosecution of this action and this information is otherwise unobtainable (Thorson v. New York City Tr. Auth., 305 AD2d 666 [2d Dept 2003]). Plaintiff alleges he sustained personal injuries to his body and psyche and is totally disabled from work…Mrs. DiBenedetto can provide testimony pertaining to plaintiff’s alleged injuries and the loss of earnings claim. However, defendant fails to demonstrate on this motion that the subpoena was properly served on Mrs. DiBenedetto, as an affidavit of service was not submitted on the motion. Plaintiff is directed to serve Lena DiBenedetto with a new subpoena in the manner prescribed in CPLR 2303[a] and the subpoena shall set forth the circumstances or reasons her deposition is sought (CPLR 3101[a][4]). Id at 2-3
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Calarco arose out of a motion by plaintiff for an order directing defendants to comply with prior discovery orders relating to discovery notices “to produce and to compel defendant to produce board member Jose Morales for deposition[.]”
Supreme Court described the action:
This is an action for personal injuries allegedly sustained by plaintiff on May 25, 2011, while employed as a superintendent, when a section of a wall collapsed on him while he was in the boiler room of the premises known as Netherland Gardens located at 2 Soundview Avenue in White Plains, New York. Id at 2
And the prior deposition testimony:
Plaintiff was deposed on June 25, 2013. He testified that he had several conversations with board member Jose Morales about the boiler room and that Mr. Morales inspected that room two or three times before the subject incident occurred and told plaintiff that the bad condition would be repaired. Id
On July 31, 2013, Milder Belalcazar was deposed. She testified that she lived in Netherland Gardens from May, 2008 to July, 2012, and that she became president of its co-op board in 2009. She testified that at the time she became president, an “assessment” was in the process because “they wanted to do some work with some of the walls in the building”. The assessment was done in writing by Samson Management. An engineer and an architect reviewed the matter as part of the assessment process and they presented information to the city to get the appropriate permits. Id
Belalcazar further testified that every month the co-op board held meetings at which minutes were taken. If any construction was done, copies of invoices would be distributed at the meeting relating thereto. These invoices were kept by the management company which at one time was Samson Management and is now Gabriel Management. She knew that work had been done on the interior walls of the boiler room but that wasn’t certain if the work was done before or after the subject incident. She also testified that Shallu Construction did work at the subject premises, although she wasn’t sure what type of work was done. The work it did was before the subject accident and its work was discussed at the board meetings. Casa Construction also did work on the wall at some point. Id at 3
As to the deposition of Morales:
Plaintiff assert[ed] that it is board member Jose Morales who is most aware of the pre-accident issues regarding the subject wall. He was with plaintiff in the boiler room several times before the accident and discussed the situation with plaintiff. At the deposition of defendant’s witness, Milder Belalcazar, plaintiff’s counsel raised an objection noting his expectation that defendant would produce Morales as its witness. On or about August 5, 2013, plaintiff served defendant with a notice to take its deposition by Jose Morales on August 22, 2013. By letter dated August 21, 2013, defendant rejected the notice on the grounds that it violated CPLR 3107 and the basis of the sufficiency of Belalcazar’s testimony. In opposition to the motion (dated August 26, 2013), defendant notes that it will produce its managing agent for deposition as it was directed to do so by Court order dated July 26, 2013. Id at 6
And Justice Lefkowitz applied the applicable law to the facts:
CPLR 3101(a) requires full disclosure of all matter material and necessary in the prosecution or defense of an action. A party seeking disclosure must show that the method of discovery sought will lead to the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims (Gomez v. State of New York, 106 AD3d 870 [2d Dept 2013]). For the purposes of a deposition, a corporate entity has the right to designate, in the first instance, the representative that will be examined (see Schiavone v. Keyspan Energy Delivery NYC, 89 AD3d 916 [2d Dept 2011]). Furthermore, a party moving for additional depositions has the burden of demonstrating (1) that the representative already deposed had insufficient knowledge or was otherwise inadequate and (2) that there is a substantial likelihood that the person sought for a deposition possesses information which is material and necessary to the prosecution of the case (Gomez v. State of New York, 106 AD3d 870 [2d Dept 2013]). Whether defendant had notice of the condition that allegedly caused plaintiff’s injuries is material and relevant to one of the issues regarding liability in this case. Plaintiff has sufficiently demonstrated that the deposition testimony of defendant’s previous witness was insufficient regarding the relevant issues in this case and that Mr. Morales likely possesses information that is material and necessary to the prosecution. Id at 7
Giacinto, DiBenedetto and Calarco stand for the proposition that a litigant seeking the deposition of a non-party witness must establish three things: first, that the deposition testimony of a prior witness was insufficient or inadequate; second, that the non-party sought to be examined possesses material and necessary information; and third, the information sought from the non-party cannot be obtained from another source.
Postscript: For a recent (December 5, 2013) decision on a motion by non-parties to quash subpoenas see Hildene Capital Mgt., LLC v. Bank of N.Y. Mellon, 2013 NY Slip Op 33181(U) [Sup. Ct. N.Y.Co., Sherwood, J.]