Opinion
Index No.: 109920/2008 Index No.: 590421/2009
12-16-2011
ALI GJONBALAJ, as Administrator of the Estate of ALEN GJONBALAJ deceased, Plaintiffs, v. THE 317 WEST 89TH STREET LLC C/O SAMSON MANAGEMENT CONDOMINIUM, THE 317 WEST 89TH CONDOMINIUM AND FOUR STAR GENERAL CLEANING CORP. Defendants. 317 WEST 89TH STREET LLC, C/0 SAMSON MANAGEMENT AND THE 317 WEST 89TH STREET CONDOMINIUM, Third-Party Plaintiffs, v. FOUR STAR GENERAL CLEANING CORP. Third Party Defendants.
For Plaintiff: Daniel Davidovic, Esq. Brooklyn, NY 11229 For Defendants/Third-Party Plaintiffs 317 West 89th LLC C/O Samson Management and the 317 W 89lh Street Condomium Malapero & Prisco LLP 295 Madison Ave. New York, NY 10017
DECISION AND ORDER
For Plaintiff:
Daniel Davidovic, Esq.
Brooklyn, NY 11229
For Defendants/Third-Party Plaintiffs 317 West 89th LLC
C/O Samson Management and the 317 W 89lh Street Condomium
Malapero & Prisco LLP
295 Madison Ave.
New York, NY 10017
Papers considered in review of this motion to dismiss:
Notice of Motion.............1HON. SALIANN SCARPULLA, J.:
Aff in Support................2
Aff in Opposition.............3
In this action to recover damages for personal injuries and wrongful death, plaintiff Ali Gjonbalaj, as Administrator of the Estate of Alen Gjonbalaj, deceased ("plaintiff), moves for an issuance of subpoenas on non-parties Erik Eastbrook ("Eastbrook") of the New York City Police Department (NYPD) and Aaron Rosen, M.D. ("Rosen"), of the Office of Chief Medical Examiner for the City of New York.
On July 28, 2007, Alen Gjombalaj ("Gjombalaj") was allegedly murdered in his apartment located in the 317 West 89th Street condominium. Gjombalaj was the condominium's superintendant. Ali Gjonbalaj, the Administrator of his estate, commenced this action in July 2008, alleging that defendants negligently operated, maintained and controlled the building, thus permitting an unidentified intruder to gain access to the apartment.
Plaintiff now moves for an issuance of subpoenas on non-parties Eastbrook and Rosen. On August 17, 2011, plaintiffs withdrew their motion as to Rosen. However, they still seek Easterbrook's deposition, as well as documents from Easterbook relating to the Gjombalaj murder investigation. Plaintiff asserts that Easterbrook could testify to the condition of the situs of the accident at the time he entered the apartment.
In opposition, defendants 317 West 89th Street LLC and 317 West 89th Street LLC-c/o Samson Management ("defendants") argue that the Court should deny plaintiffs motion because the proposed subpoenas are facially defective for failing to explain why the discovery from Eastbrook is necessary. Defendants further argue that plaintiffs have not established adequate special circumstances to require the deposition and production of documents from Easterbrook. Defendants also maintain that the requested disclosure would impair the criminal investigation into Gjombalaj's murder. Discussion
Disclosure may be sought from a non-party "upon notice stating the circumstances or reasons such disclosure is sought or required." CPLR § 3101(a)(4). Further, there must be "adequate special circumstances" to support the disclosure. Brady v. Ottaway Newspapers, Inc., 63 N.Y.2d 1031, 1032 (1984). "Whether or not adequate special circumstances have been shown to support discovery against a nonparty is generally a determination to be made upon a review of the facts, and rests within the sound discretion of the court to which application is made." Brady, 63 N.Y.2d at 1032.
Here, plaintiff has not articulated adequate special circumstances to support discovery from non-party Easterbrook. Plaintiff does not indicate that it has made any efforts to obtain the information from another source, nor has plaintiff asserted that attempting to do so would be fruitless. See Cirale v. 80 Pine Street Corp., 35 N.Y.2d 113, 114 (1974) (holding that a wrongful death plaintiff did not show adequate special circumstances to support non-party discovery-from a government agency where plaintiff did not "indicate what endeavors, if any, were undertaken to obtain" independent evidence).
Because plaintiffs have not articulated adequate special circumstances to warrant discovery from Easterbrook, this Court does not decide whether the subpoenas are facially defective or whether the information seeking discovery from Easterbrook would impair an ongoing criminal investigation.
In accordance with the foregoing, it is
ORDERED that the motion seeking a subpoena and a subponeas duces tecum by plaintiff Ali Gjonbalaj, as Administrator of the Estate of Alen Gjonbalaj, deceased, is denied.
This constitutes the decision and order of the Court. Dated: New York, New York
November 30, 2011
ENTER:
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Saliann Scarpulla, J.S.C.