Opinion
16465-, 16466-, 16466A Index No. 21008/16 Case Nos. 2021-03390, 2021-03391, 2021-03394
10-18-2022
Yvette MARRERO et al., Plaintiffs–Respondents, v. MODERN FOOD CENTER INC. et al., Defendants–Appellants. [And a Third–Party Action]
Newman Law Associates PLLC, New York (Jon E. Newman of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for Yvette Marrero, respondent. Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for Melissa Gonzalez, respondent.
Newman Law Associates PLLC, New York (Jon E. Newman of counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for Yvette Marrero, respondent.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for Melissa Gonzalez, respondent.
Manzanet–Daniels, J.P., Mazzarelli, Oing, Kennedy, Mendez, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 27, 2021, which, to the extent appealed from, limited defendants’ further depositions of plaintiffs, unanimously affirmed, with costs. Appeals from orders (Laura G. Douglas, J.), entered on or about March 27, 2019 and December 5, 2019, unanimously dismissed, without costs, as superseded by the August 27, 2021 order.
While the orders are not appealable as of right (see Tommy Hilfiger U.S.A. , Inc. v. Insurance Co. of N. Am., 239 A.D.2d 255, 255, 658 N.Y.S.2d 837 [1st Dept. 1997] ), we deem the notices of appeal to be applications for leave to appeal pursuant to CPLR 5701(c), and grant such leave (see Steinberg v. Montefiore Med. Ctr., 23 A.D.3d 281, 281, 808 N.Y.S.2d 6 [1st Dept. 2005] ). The court providently exercised its discretion in limiting the further deposition of plaintiff Yvette Marrero "to the 4–corners of the video" and that of plaintiff Melissa Gonzalez "to questions not previously addressed at [her] prior deposition." Defendants failed to explain how the late disclosure of the video necessitated unrestricted further depositions on all liability issues. They likewise fail to demonstrate that the limitations prejudiced them or deprived them of testimony relevant to their defense, since plaintiff was questioned on the still photographs taken from the subject video at issue during her deposition (see Hutton v. Aesthetic Surgery, P.C., 161 A.D.3d 595, 596, 73 N.Y.S.3d 876 [1st Dept. 2018] ; Hargrove v. Riverbay Corp., 128 A.D.3d 464, 465, 9 N.Y.S.3d 230 [1st Dept. 2015] ). Similarly, defendants’ argument that Gonzalez's late disclosure of psychiatric records entitled them to further deposition of Gonzalez on all damages issues is unavailing.
Defendants’ contention that Modern Food Center Inc. is entitled to an unlimited deposition of Gonzalez because her action against it was not commenced until after the initial depositions were conducted is improperly raised for the first time on appeal (see Matter of Brodsky v. New York City Campaign Fin. Bd., 107 A.D.3d 544, 545, 971 N.Y.S.2d 265 [1st Dept. 2013] ), and is otherwise without merit under the circumstances presented here.