| White v Tutor Time |
| 2010 NY Slip Op 01954 [71 AD3d 761] |
| March 9, 2010 |
| Appellate Division, Second Department |
| David White et al., Appellants, v Tutor Time,Respondent. |
—[*1] Pugatch & Nikolis, Garden City, N.Y. (Phillip P. Nikolis of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Jones, J.), datedApril 21, 2009, as denied that branch of their cross motion which was to compel the defendant toproduce Emily Picarello for a deposition.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiffs' cross motion which was to compel the defendant to produce EmilyPicarello for a deposition is granted.
On August 13, 2007 the infant plaintiff was injured while playing in the yard outside thedefendant's childcare facility in Medford. The infant plaintiff was almost six years old at the timeof the accident. The accident allegedly was witnessed by one of the defendant's employees, ateacher named Emily Picarello. Picarello also filled out an accident report for the defendant. Asecond teacher also was present in the yard at the time of the accident.
After this action was commenced, the defendant produced Jamie Hollowell, who was itsAssistant Center Director on the date of the accident, as its witness. She acknowledged that shehad not seen the accident involving the infant plaintiff and testified based upon, inter alia, herconversations with Picarello and the other teacher.
Thereafter, the plaintiffs sought, inter alia, to compel the defendant to produce Picarello for adeposition. The Supreme Court denied that branch of the motion. We reverse.
While Hollowell, the witness who was produced, was factually knowledgeable about variousmatters at issue including the procedures employed by the defendant, it is undisputed that she didnot witness the accident and Picarello, the person the plaintiffs seek to depose, was aneyewitness to the accident. Picarello also filled out the incident report which was filed with thedefendant after the accident. Under the circumstances of this case, the plaintiffs established thatthe witness who was produced had an inadequate knowledge of what happened and that there isa substantial likelihood that [*2]Picarello possesses informationwhich is material and necessary for the prosecution of the case. Accordingly, the Supreme Courtshould have directed the defendant to produce Picarello for a deposition as to what she observedduring the incident (see Williams v Cityof New York, 40 AD3d 847, 849 [2007]; Mercado v Alexander, 227 AD2d 391[1996]; Zollner v City of New York, 204 AD2d 626 [1994]; Simon v Advance Equip.Co., 126 AD2d 632 [1987]; cf.Fowler v Yonkers Gospel Mission, 67 AD3d 635 [2009]; Carter v New York CityBd. of Educ., 225 AD2d 512 [1996]). Rivera, J.P., Florio, Dickerson, Belen and Roman, JJ.,concur.