Opinion
824 CA 19–00502
09-27-2019
Thomas CZECHOWSKI, Plaintiff–Appellant, v. BUFFALO NIAGARA MEDICAL CAMPUS, INC., et al., Defendants. Buffalo Niagara Medical Campus, Inc., et al., Third-Party Plaintiffs, v. Aria Contracting Corp., Third-party Defendant-Respondent.
DOLCE PANEPINTO, P.C., BUFFALO (ANNE M. WHEELER OF COUNSEL), FOR PLAINTIFF–APPELLANT. HURWITZ & FINE, P.C., BUFFALO (DAVID R. ADAMS OF COUNSEL), FOR THIRD–PARTY DEFENDANT–RESPONDENT.
DOLCE PANEPINTO, P.C., BUFFALO (ANNE M. WHEELER OF COUNSEL), FOR PLAINTIFF–APPELLANT.
HURWITZ & FINE, P.C., BUFFALO (DAVID R. ADAMS OF COUNSEL), FOR THIRD–PARTY DEFENDANT–RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating that part of the order that limited the scope of questioning during the deposition of a prospective witness and as modified the order is affirmed without costs.
Memorandum: In this personal injury action, plaintiff appeals from an order that, inter alia, granted his motion to compel a former employee of third-party defendant Aria Contracting Corp. (Aria) to appear for a deposition but limited the scope of plaintiff's questioning of that prospective witness, and denied plaintiff's separate motion to compel two other representatives of Aria to appear for second depositions and answer questions that counsel for Aria directed them not to answer during their first depositions. We modify the order by vacating that part of the order that limited the scope of questioning during the deposition of the prospective witness.
Preliminarily, Supreme Court's ruling limiting the scope of a pretrial examination, although reduced to an order, is not appealable as of right (see Roggow v. Walker , 303 A.D.2d 1003, 1003–1004, 757 N.Y.S.2d 410 [4th Dept. 2003] ; Matter of Beeman , 108 A.D.2d 1010, 1011, 485 N.Y.S.2d 396 [3d Dept. 1985] ; see generally CPLR 5701[a] ). In the exercise of our discretion, however, we "treat the notice of appeal as an application for permission to appeal and grant such permission" ( Roggow , 303 A.D.2d at 1004, 757 N.Y.S.2d 410 ; see CPLR 5701[c] ).
We agree with plaintiff that the court erred in limiting in advance the scope of plaintiff's questioning during a deposition of the prospective witness. The court's limitation on the future deposition testimony of that witness, Aria's former office manager, could result in the preclusion of testimony that would be relevant at trial or in preparation for trial (see generally Allen v. Crowell–Collier Publ. Co. , 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968] ). Certain areas of inquiry that would be precluded under the court's limitation, such as questions concerning a witness's credibility, bias, or motive, are indisputably relevant to the prosecution or defense of an action (see Dominicci v. Ford , 119 A.D.3d 1360, 1361, 989 N.Y.S.2d 733 [4th Dept. 2014] ; Roggow , 303 A.D.2d at 1003, 757 N.Y.S.2d 410 ), and thus the anticipatory ruling by the court would preclude inquiry into legitimate areas of pretrial discovery (see Tardibuono v. County of Nassau , 181 A.D.2d 879, 881, 581 N.Y.S.2d 443 [2d Dept. 1992] ).
Contrary to plaintiff's further contention, the court did not err in denying his motion to compel two other representatives of Aria to appear for second depositions. Here, the questions that plaintiff intended to ask those witnesses during the second depositions either called for privileged information, or were not material or relevant to plaintiff's personal injury action, or were asked and answered during those witnesses' first depositions (see generally CPLR 3101 ; Brown v. Home Depot, U.S.A. , 304 A.D.2d 699, 699–700, 758 N.Y.S.2d 378 [2d Dept. 2003] ; MS Partnership v. Wal–Mart Stores , 273 A.D.2d 858, 858, 709 N.Y.S.2d 290 [4th Dept. 2000] ; Shapiro v. Levine , 104 A.D.2d 800, 800–801, 479 N.Y.S.2d 1006 [2d Dept. 1984] ). "Absent an abuse of discretion, we will not disturb the court's control of the discovery process" ( MS Partnership , 273 A.D.2d at 858, 709 N.Y.S.2d 290 ; see generally Kern v. City of Rochester [appeal No. 1], 267 A.D.2d 1026, 1026, 700 N.Y.S.2d 320 [4th Dept. 1999] ), and we perceive no abuse of discretion here.