Opinion
2013-10-4
Thomas BURKE, Plaintiff–Respondent, v. COUNTY OF ERIE, Defendant–Appellant.
Hodgson Russ LLP, Buffalo (Ryan J. Lucinski of Counsel), for Defendant–Appellant. Cantor, Dolce & Panepinto, P.C., Buffalo (Jonathan M. Gorski of Counsel), for Plaintiff–Respondent.
Hodgson Russ LLP, Buffalo (Ryan J. Lucinski of Counsel), for Defendant–Appellant. Cantor, Dolce & Panepinto, P.C., Buffalo (Jonathan M. Gorski of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY AND WHALEN, JJ.
MEMORANDUM:
In this Labor Law action, plaintiff's counsel served a nonparty witness subpoena on the only eyewitness to the accident demanding that he appear for a deposition. The nonparty witness had commenced a separate Labor Law action arising from a different construction site accident and retained plaintiff's counsel to represent him in that lawsuit. Plaintiff's counsel asked the nonparty witness various questions about plaintiff's accident, and then defendant's counsel asked the nonparty witness questions that established that plaintiff and the nonparty witness were both carpenters in the same union, they both had pending lawsuits involving the same employer, and they both retained the same attorneys. When defendant's counsel asked if plaintiff was going to be a witness in the nonparty witness's case, plaintiff's counsel objected and directed the nonparty witness not to answer. Plaintiff's counsel further objected and directed the nonparty witness not to answer when defendant's counsel asked the nonparty witness whether plaintiff's counsel was representing him in connection with the deposition. Thereafter, the deposition was discontinued.
Defendant moved, inter alia, for an order compelling a second deposition of the nonparty witness and prohibiting plaintiff's counsel from interfering with that deposition. Supreme Court denied the motion, and we now modify the order by granting that part of the motion seeking to compel a second deposition of the nonparty witness. The questions asked by defendant's counsel were relevant with respect to the nonparty witness's bias or motive ( see generally CPLR 3101[a]; Salm v. Moses, 13 N.Y.3d 816, 818, 890 N.Y.S.2d 385, 918 N.E.2d 897). Thus, the questions should have been “ ‘freely permitted and answered’ ” ( Roggow v. Walker, 303 A.D.2d 1003, 1004, 757 N.Y.S.2d 410). In any event, we agree with defendant that it is entitled to a second deposition of the nonparty witness in order to cross-examine the witness regarding the circumstances of the accident.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of the motion to compel a second deposition of the nonparty witness and as modified the order is affirmed without costs.