Opinion
09-29-2016
Vincent MASSA, Plaintiff–Respondent, v. LOWER MANHATTAN DEVELOPMENT CORPORATION, et al., Defendants, Bovis Lend Lease LMB, Inc., et al., Defendants–Appellants.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simoneof counsel), for appellants. The Altman Law Firm, PLLC, New York (Michael T. Altmanof counsel), for respondent.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simoneof counsel), for appellants.
The Altman Law Firm, PLLC, New York (Michael T. Altmanof counsel), for respondent.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered March 21, 2016, which denied defendants Bovis Lend Lease LMB, Inc. and Bovis Lend Lease, Inc.'s (Bovis) motion to quash a subpoena by plaintiff for a nonparty deposition, unanimously affirmed, without costs.
The motion court determined that the motion to quash was moot because the noticed deposition date had passed. This was erroneous, because the deposition had been adjourned to May 20, 2016. Moreover, both plaintiff and Bovis acknowledge that the deposition has not yet taken place. Nevertheless, plaintiff demonstrated "unusual or unanticipated circumstances" and "substantial prejudice" warranting post-note-of-issue discovery (see22 NYCRR 202.21[d]; Arons v. Jutkowitz, 9 N.Y.3d 393, 411, 850 N.Y.S.2d 345, 880 N.E.2d 831 [2007]; Schroeder v. IESI N.Y. Corp., 24 A.D.3d 180, 805 N.Y.S.2d 79 [1st Dept.2005]). Counsel's statement that he only realized the importance of the nonparty witness's testimony after filing the note of issue is sufficient.
MAZZARELLI, J.P., ACOSTA, SAXE, MOSKOWITZ, GESMER, JJ., concur.