| Giordano v New Rochelle Mun. Hous. Auth. |
| 2011 NY Slip Op 03802 [84 AD3d 729] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Francesco Giordano et al., Appellants, v New RochelleMunicipal Housing Authority et al., Respondents. |
—[*1] Tackel & Varachi, LLP, White Plains, N.Y. (Martin S. Tackel of counsel), for respondentNew Rochelle Municipal Housing Authority. Murphy & Higgins, LLP, New Rochelle, N.Y. (David J. Rasmussen of counsel), forrespondents Almstead Tree and Shrub Care Co. and Almstead Tree Company, Inc.
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, Westchester County (Scheinkman,J.), entered February 4, 2010, as denied those branches of their motion which were to compel thedepositions of named employees of the defendant New Rochelle Municipal Housing Authority,and to compel the defendants to respond to a notice to produce documents in compliance withsubpoenas served upon physicians and psychologists who conducted independent medicalexaminations of the plaintiff Francesco Giordano on behalf of the defendants, and granted thosebranches of the cross motion of the defendant New Rochelle Municipal Housing Authority whichwere for a protective order preventing the depositions of any additional employee, to quash thesubpoenas, and for a protective order preventing discovery of the requested documents of thephysicians and psychologists, and those branches of the separate cross motion of the defendantsAlmstead Tree and Shrub Care Co. and Almstead Tree Company, Inc., which were to quash thesubpoenas and for a protective order preventing discovery of the requested documents of thephysicians and psychologists.
Ordered that the order is modified, on the facts and in the exercise of discretion, (1) bydeleting the provision thereof denying that branch of the plaintiffs' motion which was to compelthe depositions of named employees of the New Rochelle Municipal Housing Authority, andsubstituting therefor a provision granting that branch of the motion, and (2) by deleting theprovision thereof granting that branch of the cross motion of the defendant New RochelleMunicipal Housing Authority which was for a protective order preventing the depositions of anyadditional employee, and substituting therefor a provision denying that branch of the crossmotion of that defendant; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
The plaintiff Francesco Giordano, a police officer (hereinafter the injured plaintiff), wasallegedly injured when a tree fell on the police vehicle in which he was sitting at property [*2]owned, operated, and maintained by the defendant New RochelleMunicipal Housing Authority (hereinafter NRMHA). The injured plaintiff and his wife, suingderivatively, commenced this action against NRMHA, as well as against Almstead Tree andShrub Care Co. and Almstead Tree Company, Inc. (hereinafter together Almstead), whichallegedly inspected the grounds of the property approximately six months before the tree fell.
The plaintiffs moved to compel the depositions of certain employees of NRMHA, and tocompel all of the defendants to respond to a notice to produce documents in compliance withsubpoenas served upon physicians who conducted independent medical examinations of theinjured plaintiff on behalf of the defendants. NRMHA cross-moved for a protective orderpreventing the depositions of any additional employee, to quash the subpoenas, and for aprotective order preventing discovery of the documents of the physicians and psychologists.Almstead separately cross-moved to quash the subpoenas and for a protective order preventingdiscovery of the physicians' and psychologists' documents.
The CPLR provides "[t]here shall be full disclosure of all matter material and necessary inthe prosecution or defense of an action, regardless of the burden of proof" (CPLR 3101 [a]). Thephrase "material and necessary" should be interpreted liberally, and the test is one of "usefulnessand reason" (Kooper v Kooper, 74AD3d 6, 10 [2010] [internal quotation marks omitted]). Unlimited disclosure, however, isnot required (see Spohn-Konen v Townof Brookhaven, 74 AD3d 1049 [2010]; Palermo Mason Constr. v Aark HoldingCorp., 300 AD2d 460, 461 [2002]), and the rules provide that the Supreme Court may issue aprotective order "denying, limiting, conditioning or regulating the use of any disclosure device"to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice toany person or the courts" (CPLR 3103 [a]).
For purposes of depositions, a corporate entity has the right to designate, in the first instance,the representative who shall be examined (see Nunez v Chase Manhattan Bank, 71 AD3d 967, 968 [2010]; Sladowski-Casolaro v WorldChampionship Wrestling, Inc., 47 AD3d 803 [2008]). To show that additionaldepositions are warranted, the moving party must demonstrate that "the representatives alreadydeposed had insufficient knowledge, or were otherwise inadequate," and that "there is asubstantial likelihood that the persons sought for depositions possess information which ismaterial and necessary to the prosecution of the case" (Nunez v Chase Manhattan Bank,71 AD3d at 968; see Carter v New York City Bd. of Educ., 225 AD2d 512 [1996];Zollner v City of New York, 204 AD2d 626, 627 [1994]). Whether NRMHA had actualor constructive knowledge of a defect in the tree prior to the accident is material and relevant tothe issue of liability in this case (see Harris v Village of E. Hills, 41 NY2d 446, 449[1977]; Crawford v Forest HillsGardens, 34 AD3d 415, 415-416 [2006]; Asnip v State of New York, 300 AD2d328, 329 [2002]).
The previous depositions established that the employees produced by NRMHA lackedsufficient knowledge of the prior condition of the tree. Thus, they were insufficientlyknowledgeable with respect to whether NRMHA had actual or constructive notice of a defectivecondition of the tree. Moreover, the previous depositions established that there was a substantiallikelihood that the additional witnesses sought by the plaintiffs were in a position to offermaterial and necessary information on the issue of whether or not the tree had visible signs ofdecay prior to the accident, and whether NRMHA had actual or constructive notice of thedefective condition of the tree prior to the injured plaintiff's accident. Accordingly, under theparticular facts of this case, the Supreme Court's denial of the plaintiffs' request to compelNRMHA to produce the named employees for deposition, and its grant of NRMHA's request fora protective order preventing the deposition of any additional employee, were improvidentexercises of discretion (see Aronson vIm, 81 AD3d 577 [2011]; White v Tutor Time, 71 AD3d 761, 761-762 [2010]).
However, the Supreme Court properly denied those branches of the plaintiffs' motion whichwere to compel the defendants to respond to a notice to produce documents in compliance withsubpoenas served upon the defendants' examining physicians and psychologists, and properlygranted those branches of the defendants' separate cross motions which were to quash thesubpoenas and for a protective order preventing discovery of documents of the subpoenaedphysicians and psychologists. The plaintiffs served subpoenas duces tecum on the defendants'examining [*3]physicians and psychologists, seeking, inter alia,the medical records relied on by the defendants' experts, copies of the injured plaintiff's recordswhich were reviewed by the defendants' experts, writings and other recordings created by theinjured plaintiff at or during his examinations, test results, scored results, measurements, anyscales or other documents necessary to interpret the results of the defendants' experts, and notesof the examining physicians. The Supreme Court correctly determined that the informationsubpoenaed was not discoverable because it was privileged as material prepared for litigation,and the plaintiffs failed to demonstrate that they had a substantial need for the materials, or thatthey were unable, without undue hardship, to obtain the substantial equivalent of the materials byother means (see CPLR 3101 [d] [2]; see also Daniels v Armstrong, 42 AD3d 558, 558-559 [2007];Martinez v KSM Holding, 294 AD2d 111 [2002]). Dillon, J.P., Florio, Balkin and Eng,JJ., concur.