Opinion
06-07-2017
ALUMIL FABRICATION, INC., appellant, v. F.A. ALPINE WINDOW MANUFACTURING CORPORATION, respondent.
Sacco & Fillas, LLP, Astoria, NY (Scott J. Laird of counsel), for appellant. Eugene J. Grillo, Middletown, NY, for respondent.
Sacco & Fillas, LLP, Astoria, NY (Scott J. Laird of counsel), for appellant.
Eugene J. Grillo, Middletown, NY, for respondent.
In an action, inter alia, for replevin and to recover damages for conversion, the plaintiff appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated March 24, 2016, which, in effect, granted the defendant's motion to compel the deposition of a nonparty witness and denied its cross motion for a protective order preventing the defendant from obtaining discovery from the nonparty witness.
ORDERED that the order is affirmed, with costs.
CPLR 3101(a) is to be liberally construed "to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 ; see Matter of Kapon v. Koch, 23 N.Y.3d 32, 38, 988 N.Y.S.2d 559, 11 N.E.3d 709 ). Here, in order to compel a deposition, the defendant was required to show that the disclosure sought was "material and necessary" (CPLR 3101[a] ; see Matter of Kapon v. Koch, 23 N.Y.3d at 38, 988 N.Y.S.2d 559, 11 N.E.3d 709 ). In addition, since the defendant was seeking disclosure from the plaintiff's counsel as a nonparty witness, the defendant was required to provide notice of the "circumstances or reasons" why the disclosure was "sought or required" from the nonparty witness (CPLR 3101[a] [4] ; see Matter of Kapon v. Koch, 23 N.Y.3d at 39, 988 N.Y.S.2d 559, 11 N.E.3d 709 ; Reid v. Soults, 138 A.D.3d 1091, 1092, 30 N.Y.S.3d 669 ; Bianchi v. Galster Mgt. Corp., 131 A.D.3d 558, 559, 15 N.Y.S.3d 189 ; Dicenso v. Wallin, 109 A.D.3d 508, 509, 970 N.Y.S.2d 457 ).
The defendant satisfied the notice requirement by serving the plaintiff's counsel with its motion papers, which properly provided the circumstances or reasons requiring the deposition of that nonparty (see CPLR 3101[a][4] ). Furthermore, the defendant demonstrated that the deposition testimony was relevant to the defense of the action and to the prosecution of its counterclaim (see Clean Earth of N. Jersey, Inc. v. Northcoast Maintenance Corp., 142 A.D.3d 1032, 1035, 39 N.Y.S.3d 165 ; Branch Servs., Inc. v. Cooper, 102 A.D.3d 645, 646, 961 N.Y.S.2d 170 ; BRK Props., Inc. v. Wagner Ziv Plumbing & Heating Corp., 89 A.D.3d 883, 884, 933 N.Y.S.2d 99 ). In opposition to the defendant's motion and in support of its cross motion for a protective order, the plaintiff failed to establish that the deposition testimony sought was irrelevant to this action.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court providently exercised its discretion when it, in effect, granted the defendant's motion to compel the deposition of the nonparty witness and denied the plaintiff's cross motion for a protective order.
HALL, J.P., SGROI, MALTESE and LaSALLE, JJ., concur.