Opinion
Index Nos. 150594/2018 595237/2018 Motion Seq. No. 004
01-12-2023
FREDERICK CAPUTO, Plaintiff, v. IESI NY CORPORATION, WASTE CONNECTIONS, INC., CHARLES MAHONEY, FRANK LINO, Defendant. IESI NY CORPORATION Plaintiff, v. CENTURY WASTE SERVICES LLC Defendant.
Unpublished Opinion
Motion Date 11/11/2022
PRESENT: HON. FRANK P. NERVO, Justice
DECISION + ORDER ON MOTION
HON. FRANK P. NERVO, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 004) 152, 153, 154, 155, 156, 157, 158, 159, 166, 167, 168 were read on this motion to/for DISCOVERY.
Plaintiff seeks to compel the deposition of defendants Lino and IESI NY Corp. (hereinafter "IESI)" as named parties to this action. Lino and IESI oppose contending that the failure to notice these depositions in accordance with prior discovery orders constitutes waiver of same.
It is beyond cavil that parties are entitled to the deposition of other parties. "There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (CPLR § 3101). The right to such deposition is not absolute, and the failure to timely comply with orders directing a deposition occur may constitute waiver or result in sanctions (see e.g. Clark v. Allen & Overy, LLP, 159 A.D.3d 478 [1st Dept 2018). However, the failure to timely object to a demand for deposition, or object with sufficient particularity, may constitute waiver of any objection (see e.g. Khatskevich v. Victor, 187 A.D.3d 504 [1st Dept 2020]).
There have been numerous adjournments of motions, conferences, and discovery deadlines in this matter (see e.g. NYSCEF Doc. Nos. 56, 57, 59, 64, 67, 69, 141, 142, 147 [non-exhaustive list]). Additionally, the parties have attempted to resolve the matter via mediation (NYSCEF Doc. No. 140). This has resulted in delays completing discovery. Given these adjournments and delays, the Court will not deem plaintiff's notice of deposition waived.
Furthermore, the Court is constrained to note an inconsistency in defendants' position in opposition. In motion sequence 003, filed nearly contemptuously with the instant motion, defendants IESI, Mahoney, and Lino sought a further adjournment of defendants Mahoney's and Century Waste's depositions, depositions which have been the subject of various prior orders over a multi-year period and noticed by plaintiff at the same time as defendant IESI (NYSCEF Doc. Nos. 9 - 12); however, in the instant motion, these same defendants contend that plaintiff's failure to abide by these same orders (which defendants also failed to abide by) constitutes waiver of IESI's deposition.
Accordingly, it is
ORDERED that the motion is granted; and it is further
ORDERED that IESI shall appear for deposition, via in-person or electronic means, on February 8, 2023, beginning at 10:00am and continuing until completion without interruption in accordance with the Uniform Rules; and it is further
ORDERED that Frank Lino shall appear for deposition, via in-person or electronic means, on February 15, 2023, beginning at 10:00am and continuing until completion without interruption in accordance with the Uniform Rules; and it is further
ORDERED that post-deposition demands related to the above depositions shall be served no later than 20 days following the deposition giving rise to the demand; responses thereto shall be served no later than 20 days form receipt of demand; and it is further
ORDERED that the failure to timely serve post-deposition demands shall constitute waiver of same; and it is further
ORDERED that the failure to timely respond to timely served post-deposition demands shall result in sanctions, including but not limited to the striking of pleadings or preclusion of evidence, upon further application and in the Court's discretion; and it is further
ORDERED that the deposition dates set forth herein may not be adjourned or otherwise modified absent further Court order; and it is further [continued on following page]
ORDERED that any requested relief not addressed herein has nevertheless been considered and is hereby denied.
This constitutes the Decision and Order of the Court.