| Jacobs v Johnston |
| 2012 NY Slip Op 05390 [97 AD3d 538] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Craig Jacobs, Respondent, v Henry H. Johnston, Jr.,Appellant. |
—[*1] Hecht, Kleeger, Pintel & Damashek (The Law Office of Judah Z. Cohen, PLLC, New York,N.Y., of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), datedFebruary 16, 2012, as denied that branch of his motion which was pursuant to 22 NYCRR202.21 to vacate the note of issue and, in effect, to compel the deposition of a nonparty witness,and granted the plaintiff's cross motion to quash a subpoena served upon the nonparty witness.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendant's motion which was to vacate the note of issue and, in effect, to compelthe deposition of a nonparty witness is granted, and the plaintiff's cross motion to quash thesubpoena is denied.
Since the defendant moved to vacate the note of issue within the time prescribed for doing sopursuant to 22 NYCRR 202.21 (e), and clearly demonstrated that the case was not ready for trial,that branch of the defendant's motion which was to vacate the note of issue and, in effect, tocompel the deposition of a nonparty witness should have been granted (see CPLR 2103[b] [2]; Gallo v SCG Select CarrierGroup, L.P., 91 AD3d 714 [2012]; Tirado v Miller, 75 AD3d 153, 157 [2010]). Furthermore, since thedefendant timely moved to vacate the note of issue, he was required only to demonstrate why thecase was not ready for trial, and was not required to establish that additional discovery wasnecessary because unusual or unanticipated circumstances had developed subsequent to the filingof the note of issue (see 22 NYCRR 202.21 [d], [e]; Mosley v Flavius, 13 AD3d 346 [2004]; Rizzo vDeSimone, 287 AD2d 609, 610 [2001]; Perla v Wilson, 287 AD2d 606 [2001];Audiovox Corp. v Benyamini, 265 AD2d 135, 139 [2000]).
In opposition to the plaintiff's cross motion to quash the subpoena served by the defendantupon the nonparty witness, the defendant demonstrated, inter alia, that the disclosure sought wasrelevant, material, and necessary to the defense of the action (see CPLR 3101 [a] [4]; Kondratick v Orthodox Church in Am.,73 AD3d 708, 709 [2010]; Tenore vTenore, 45 AD3d 571, 571-572 [2007]; [*2]Thorsonv New York City Tr. Auth., 305 AD2d 666 [2003]; Maxwell v Snapper, Inc., 249AD2d 374 [1998]). Contrary to the plaintiff's contention, the defendant did not waive his right toseek discovery from the nonparty witness by failing to raise an objection with respect thereto atthe certification conference. Since the identity of the nonparty witness was not made known tothe defendant until after the date of the certification conference, and the defendant timely movedto vacate the note of issue, the defendant could not be deemed to have waived his right to compelthe nonparty witness to comply with the subpoena and to appear for a deposition (cf. Jones v Grand Opal Constr. Corp.,64 AD3d 543, 544 [2009]; James v New York City Tr. Auth., 294 AD2d 471, 472[2002]). Accordingly, the plaintiff's cross motion to quash the subpoena should have beendenied.
The plaintiff's remaining contentions are either without merit or improperly raised for thefirst time on appeal. Rivera, J.P., Eng, Chambers, Sgroi and Miller, JJ., concur.