Opinion
19277/07.
Decided January 7, 2010.
The Plaintiffs move by Order to Show Cause for an Order staying all proceedings in this matter, including Defendants' cross-motion pending the deposition of non-party witness Mr. Clarence Fields and for an order pursuant to CPLR § 308(5) for service of a non-party subpoena on Mr. Fields as per the direction of the Court.
The Defendants move by Notice of Motion for an order pursuant to CPLR §§ 3212 and 3211(7) and 10, dismissing the Plaintiffs' Complaint in its entirety; or in the alternative, if the Complaint is not dismissed, an order denying Plaintiffs' motion and granting Defendants a protective order pursuant to CPLR § 3101.
This is a negligence and breach of contract/bailment action which is before the Court as a result of an injury that occurred to the Plaintiffs' thoroughbred filly "Point of Order" while being transported from Aqueduct Raceway to Belmont Raceway. The injury occurred when "Point of Order" was in a New York Racing Association "NYRA" ambulance operated by an employee of the New York Racing Association. According to the Plaintiff, Mr. Fields was riding in the back of the horse ambulance with "Point of Order." Mr. Fields was a groomsman employed by Plaintiffs' trainer. As the ambulance was negotiating a turn from Lefferts Boulevard onto the Conduit, it is alleged that the Defendant was negligent in the operation of the ambulance causing the horse to fall and fracture her tibia. "Point of Order" had to be euthanized as a result of the injury.
The Defendants provided the Plaintiff with an accident report listing Mr. Clarence Fields as a witness. The Defendants have obtained a written statement from Mr. Fields which, according to the Plaintiffs, they have refused to provide to the Plaintiffs.
The Plaintiffs have attempted to contact Mr. Fields but has been denied access by New York Racing Authority Security. The Plaintiff has learned from their investigator that Mr. Fields lives at the Belmont Raceway. The Plaintiff argues that Mr. Fields is the only non-party witness and is material and necessary as to what occurred when Point of Order was being transported. The Plaintiff claims that the statement of Mr. Fields is necessary to oppose the Defendants' cross-motion for summary judgment. The Plaintiff claims that they have been attempting to contact Mr. Fields since 2007.
The Defendants oppose the Plaintiffs' application. The Defendants have asserted privilege regarding the Plaintiffs' request for the statement of Mr. Fields submitting that the statement was taken in preparation for litigation.
The Plaintiffs seek assistance in serving the subpoena because they have had great difficulty in effectuating service on Mr. Fields. The Plaintiffs have hired a private investigator to serve Mr. Fields. The private investigator has been denied access to the track where Mr. Fields lives. The investigator has also solicited the assistance of the police to serve Mr. Fields to no avail.
The Defendants take exception to the fact that the Plaintiff has attempted to contact their employee and now requests that the Defendant now be compelled to accept service of process for that non-party and incur the time, expense and obligation to serve the non-party. At the same time, the NYRA seeks a protective order prohibiting Plaintiff or its agents from endeavoring to enter NYRA property, from using any ruse to enter the NYRA property and from initiating any contact with any NYRA employees in the absence of consent and/or the presence of defense counsel. The Defendants' arguments regarding Mr. Fields are a tacit admission of his employment by New York Racing Authority and Defendants' control over the witness. The Plaintiff is entitled to every opportunity to have access to question witnesses and otherwise investigate the death of "Point of Order." As such, the Plaintiffs' application is granted to the extent that the Plaintiff may serve the subpoena to take Mr. Fields' deposition on New York Racing Association. It is further
ORDERED, that this matter is stayed for sixty (60) days to March 8, 2010 to allow time for the Plaintiff to oppose the Defendants' cross-motion. The parties are to appear on that date at 9:30 a.m. before the undersigned. It is further
ORDERED, that the Defendants' cross-motion for summary judgment is adjourned until April 9, 2010.
Turning to the Defendants' application for a protective order, it has been established that protective orders are designed to deny, limit, condition or regulate the "use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" CPLR § 3103[a]). "A motion for a protective order . . . is addressed to the sound discretion of the trial court . . ." ( Boylin v Eagle Telephonics, 130 AD2d 538, 538, [2d Dept 1987]). The burden is on the moving party to establish the need for a protective order ( Koump v Smith, 25 NY2d 287, 294; Vivitorian Corp. v First Cent. Ins. Co., 203 AD2d 452, 252-253 [2d Dept 1994]). The Defendants have not met their burden. As such, their application for a protective order is denied.
This constitutes the Decision and Order of the Court.