POWELL v. COX

Full title: MASEL POWELL, ET AL., Plaintiffs, v. ANTHONY COX, Defendant

Court: Supreme Court of the State of New York, Queens County

Date published: Mar 25, 2010

2010 N.Y. Slip Op. 50496 (N.Y. Sup. Ct. 2010)

907 N.Y.S.2d 440

Opinion

18817 2008.

Decided March 25, 2010.

Pearlman, Apat, Futterman, Sirotkin Seinfeld, LLP, by Gilbert J. Serrano, Esq., Kew Gardens, New York, For the Plaintiffs.

Kossoff Unger, by Dawn R. Myers, Esq., New York, NY, For the Defendant.

CHARLES J. MARKEY, J.

In this action between neighbors over the construction of a pillar and walkway, plaintiffs assert, inter alia, trespass and encroachment, and defendant claims, inter alia, adverse possession. Herein, defendant argues that plaintiffs should be excluded from each other's depositions because they are husband and wife, have identical interests in the outcome, and are represented by the same attorney.

The protective order provision of CPLR 3103(a) allows a court to limit a disclosure device "to prevent . . . disadvantage, or other prejudice to any person or the courts." While CPLR 3103(a) allows the court discretion to limit or regulate disclosure devices and proceedings, such discretion must be exercised bearing in mind the rights of all parties ( Troutman v Washburn, 197 AD2d 876). CPLR 3113(c) establishes a party's right to be present at an examination before trial ( see, Lunney v Graham, 91 AD2d 592 ; Carlisle v County of Nassau, 64 AD2d 15). Pursuant to CPLR 3103(a), under appropriate circumstances, a court may exercise its discretion to exclude a party from a deposition ( Perez v Time Moving Stor. , 28 AD3d 326 ). However, to exclude a party from a pretrial deposition, a showing of "unusual" circumstances must be met ( Perez v Time Moving Stor., supra; Lunney v Graham, 91 AD2d at 593).

Herein, defendant has failed to make the requisite showing of either an unusual circumstance or a compelling necessity for the exclusion of the plaintiffs at each other's depositions or a waiver of their right to be present at their examinations before trial ( see, CPLR 3113[c]; Perez v Time Moving Stor., supra). Defendant's conclusory assertions that the plaintiffs' marital status would lead them to conspire and tailor their testimony if they were present at each other's depositions is an insufficient basis for barring a party from a deposition ( Perez v Time Moving Stor., supra). Such an assumption does not rise to the level of an unusual circumstance ( see, Perez v Time Moving Stor., supra).

The Court denies the motion.

The foregoing constitutes the decision and order of the Court.