| Nunez v Chase Manhattan Bank |
| 2010 NY Slip Op 02525 [71 AD3d 967] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Porforio Nunez, Plaintiff, v Chase Manhattan Bank et al.,Defendants/Third-Party Plaintiffs/Second Third-Party Plaintiffs-Respondents. United BuildingMaintenance Corp., Third-Party Defendant/Fourth-Party Plaintiff; ThyssenKrupp ElevatorCompany, Inc., Second Third-Party Defendant/Fourth-Party Defendant-Appellant. (And OtherTitles.) |
—[*1] Malapero & Prisco, LLP, New York, N.Y. (Mary Beth Harmon of counsel), fordefendants/third-party plaintiffs/second third-party plaintiffs-respondents.
In an action to recover damages for personal injuries, the second third-partydefendant/fourth-party defendant, ThyssenKrupp Elevator Company, Inc., appeals, as limited byits brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated June 9,2009, as granted the motion of the defendants/third-party plaintiffs/second third-party plaintiffs,Chase Manhattan Bank and J.P. Morgan Chase & Co., to modify or clarify a prior ordercompelling depositions to the extent of directing that only those parties who had not beendeposed were required to appear for depositions.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendants/third-party plaintiffs/second third-party plaintiffs, Chase ManhattanBank and J.P. Morgan Chase & Co., to modify or clarify the prior order compelling depositionsis denied in its entirety.
In an order dated March 5, 2009, the Supreme Court directed that all parties appear fordepositions. The defendants/third-party plaintiffs/second third-party plaintiffs, Chase ManhattanBank and J.P. Morgan Chase & Co., had already produced a witness for a deposition. Thus, theymoved to modify or clarify that order. The Supreme Court granted the motion to the extent ofdirecting that only those parties who had not been deposed were required to appear fordepositions.
"A corporate entity has the right to designate, in the first instance, the employee who shall beexamined" (Sladowski-Casolaro vWorld Championship Wrestling, Inc., 47 AD3d 803, 803 [2008]; see Barone v GreatAtl. & Pac. Tea Co., 260 AD2d 417, 417-418 [1999]). In order to show that an additionaldeposition is warranted, the movant must demonstrate that (1) the representatives alreadydeposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantiallikelihood that the persons sought for depositions possess information which is material andnecessary to the prosecution of [*2]the case (seeSladowski-Casolaro v World Championship Wrestling, Inc., 47 AD3d at 803; Barone vGreat Atl. & Pac. Tea Co., 260 AD2d at 418).
The plaintiff in this case seeks to recover damages for personal injuries sustained in a falldown an elevator shaft in 2003. The witness produced by the defendants/third-partyplaintiffs/second third-party plaintiffs testified at his deposition that he became responsible forthe subject premises in 2006, three years after the accident, that he himself had absolutelynothing to do with the subject premises in 2003, and that he knew nothing about the accident. Healso indicated that he had not reviewed any records concerning the accident, and that he had notspoken to anyone about the accident. Moreover, he did not know anyone who was connectedwith the subject premises at the time of the accident. In addition, he was unaware of whichcompany was responsible for the maintenance of the elevators in 2003. Further, he had noknowledge concerning whether there had been any complaints involving the elevators before theaccident, or whether they had ever been repaired or serviced before the accident.
Under these circumstances, the defendants/third-party plaintiffs/second third-party plaintiffsshould have been required to produce a more knowledgeable witness, and their motion shouldhave been denied in its entirety. Rivera, J.P., Florio, Miller and Chambers, JJ., concur.