Opinion
Index No. 52693/2018 Seq. No. 9 NYSCEF Doc. No. 329
05-18-2023
STEFANY SAFIER, Plaintiff, v. WAKEFERN FOOD CORP, and SHOPRITE SUPERMARKETS, INC., ADVANCE BUILDING SOLUTIONS, INC., and CORPORATE BUILDING SERVICES INC., Defendants. WAKEFERN FOOD CORP, and SHOPRITE SUPERMARKETS, INC., Third-Party Plaintiffs, v. ADVANCE BUILDING SOLUTIONS, INC., and CORPORATE BUILDING SERVICES INC., Third-Party Defendants. ADVANCE BUILDING SOLUTIONS, INC., and CORPORATE BUILDING SERVICES INC., Second Third-Party Plaintiffs, v. FLOOR MAINTENANCE PROFESSIONALS, LLC, Second Third-Party Defendants. WAKEFERN FOOD CORP, and SHOPRITE SUPERMARKETS, INC., Third Third-Party Plaintiffs, v. FLOOR MAINTENANCE PROFESSIONALS, LLC, Third Third-Party Defendants.
Unpublished Opinion
Motion Date: 03/14/2023
DECISION AND ORDER
HON. DAMARIS E. TORRENT, A.J.S.C.
The following papers numbered 1 to 14 were read on this motion (Seq. No. 9) by plaintiff seeking an order quashing a subpoena ad testificandum served on plaintiffs father, non-party Stuart Safier, and a protective order prohibiting the taking of Mr. Safier's deposition:
PAPERS NUMBERED
Order to Show Cause / Affirmation (Ronemus) / Exhibits A - I 1-11
Affirmation in Opposition (Heffernan) / Exhibits A - B 12-14
Upon the foregoing papers, the motion is granted.
This action for personal injuries arises out of a slip-and-fall accident that occurred on December 23, 2015. By Order to Show Cause filed on February 16, 2023, plaintiff seeks an order quashing a subpoena ad testificandum served on her father, non-party Stuart Safier, and a protective order prohibiting the taking of Mr. Safier's deposition. Plaintiff asserts that the subpoena should be quashed, and a protective order issued, as Mr. Safier possesses no relevant information, and being required to sit for a deposition would have adverse effects on his health, as indicated in the Affirmation of his treating physician.
In opposition, defendants Wakefern Food Corp, and Shoprite Supermarkets, Inc. (defendants) assert that plaintiff lacks standing to challenge the subpoena served on Mr. Safier. Defendants further contend that Mr. Safier failed to timely object to the subpoena and that the request for a protective order should be denied, as plaintiff seeks evidence from Mr. Safier which is material and necessary to the defense of the action.
The Court has fully considered the submissions of the parties.
CPLR 3101(a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The phrase "material and necessary" is "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406 [1968]; see also Foster v Herbert Slepoy Corp., 74 A.D.3d 1139 [2d Dept 2010]). Although the discovery provisions of the CPLR are to be liberally construed, "a party does not have the right to 'uncontrolled and unfettered disclosure'" (Merkos L'Inyonei Chinuch, Inc. v Sharf 59 A.D.3d 408, 410 [2d Dept 2009], quoting Gilman & Ciocia, Inc. v Walsh, 45 A.D.3d 531, 531 [2d Dept 2007]). The court has broad discretion to supervise discovery and to determine whether information sought is material and necessary in light of the issues in the matter (Mironer v City of New York, 79 A.D.2d 1106 [2d Dept 2010]; Auerbach v Klein, 30 A.D.3d 451 [2d Dept 2006]; Feeley v Midas Properties, Inc., 168 A.D.2d 416 [2d Dept 1990]). "The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" (Cioffi v S.M. Foods, Inc., 142 A.D.3d 520, 522 [2d Dept 2016] [quotation and citations omitted]).
A party or nonparty seeking to quash a subpoena has the initial burden of demonstrating the subpoena should be vacated under the circumstances (Matter of Kapon v Koch, 23 N.Y.3d 32 [2014]). A nonparty subpoena should be quashed "where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is 'utterly irrelevant to any proper inquiry'" (Matter of Kapon v Koch, 23 N.Y.3d 32, 38 [2014][internal quotation marks and citation omitted]; see also Lima v Ancona, 192 A.D.3d 1093 [2d Dept 2021]; Ferolito v Arizona Beverages USA, 119 A.D.3d 642 [2d Dept 2014]). Should the movant meet this burden, the subpoenaing party must demonstrate that the discovery sought is material and necessary to the prosecution or defense of the action (Lima, 192 A.D.3d at 1093). "The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103[a]).
Defendant's assertion that plaintiff lacks standing to challenge a subpoena issued to a non-party is rejected (see Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, CPLR 3101:23; see also id. at CPLR 2304:1 [both noting that either subpoenaed witness or party may bring motion to quash or motion for protective order in response to non-party subpoena]). "A motion to quash may be made on behalf of a non-party witness by the witness or the witness' lawyer, or by one of the parties or a party's lawyer" (McDaid v Semegran, 16 Misc.3d 1102[A], 2007 NY Slip Op 51227[U] [Supreme Ct Nassau County, 2007]; see also Bianchi v Galster Mgt. Corp., 131 A.D.3d 558, 559 [2d Dept 2015][identifying burden on "the party or nonparty moving to vacate" a nonparty subpoena] [emphasis added]).
Defendants' reliance on cases requiring the moving party to demonstrate a proprietary interest in the material sought on a motion to quash a subpoena duces tecum served on a nonparty is misplaced, as the subject subpoena in this matter seeks testimony, not documents. Defendants' assertion that the within application is untimely pursuant to CPLR 3122(a) is likewise rejected, as that section by its plain terms is applicable only to a subpoena duces tecum. Pursuant to CPLR 2304, a motion to quash a subpoena "shall be made promptly in the court in which the subpoena is returnable." It is clear from the e-mail chain annexed to defendants' opposition as Exhibit A that plaintiff promptly brought the instant application within approximately two weeks of it becoming clear that the issues presented on the motion could not be resolved between the parties. The Court thus considers the motion on the merits.
Plaintiff on this motion satisfied her initial burden of demonstrating that the subpoena should be quashed, as it seeks testimony from a nonparty who does not possess information relevant to the claims or defenses in this action. As an initial matter, it is undisputed that Mr. Safier did not witness the subject accident, as asserted on the face of the subpoena. Further, plaintiff submitted the transcript of her deposition, at which she was questioned extensively by prior counsel for defendants. Plaintiffs father is mentioned in the testimony only times: twice in connection with plaintiffs admission that she had a difficult relationship with her father when she was a teenager (plaintiff was 32 years old at the time of the accident), once when plaintiff indicated that both of her parents were on vacation in Asia for approximately six weeks after the subject accident, once when plaintiff indicated that her father encouraged her to get an associate's degree, and once when plaintiff indicated that she had invited her father to a holiday gathering. It is quite clear from the testimony that Mr. Safier was not a significant presence in plaintiff s life during the timeframe relevant to this action. Plaintiff thus made the require initial showing that the futility of a deposition of Mr. Safier is obvious.
In opposition, defendants failed to meet their burden of demonstrating that a deposition of Mr. Safier will uncover information material and necessary to the defense of the action. Defendants' single assertion as to the relevance of Mr. Safier's anticipated testimony claims that such testimony "regards his own knowledge as it pertains to plaintiffs accident, her pre-injury condition, treatment and hospitalizations, and her post-injury condition, treatment and hospitalizations" (Heffernan Aff, al ¶ 28). As an initial matter, no further discovery as to plaintiff s pre-injury condition is permitted in this action, as the Decision and Order of the Court dated March 16, 2022, which vacated the Note of Issue to permit further discovery related to plaintiffs Supplemental Bill of Particulars, expressly ordered that "all additional discovery shall be limited to plaintiffs condition and treatment since the date of her last deposition session" (NYSCEF Doc. # 250 at p. 7). Further, it is undisputed that Mr. Safer did not witness the accident, and there is nothing in the record to suggest, much less establish, that Mr. Safer would be able to add anything which is not already known to all parties as to plaintiffs recent treatment. The motion to quash the subpoena thus is granted.
Plaintiffs motion for a protective order is likewise granted. Pursuant to CPLR 3103(a), this Court is authorized to limit the use of any disclosure device in the interest of "prevention of abuse," and specifically "to prevent unreasonable annoyance, ... or other prejudice to any person or the courts." In light of the limitation of further discovery to plaintiff s post-deposition treatment, and the undisputed fact that Mr. Safier did not witness the subject accident, together with the evidence of his serious medical condition, which is known to all parties, and the lack of any indication in the record that Mr. Safier was or is a significant presence in plaintiffs life, defendants' insistence on taking Mr. Safier's deposition, which defendants in opposition to this motion expressly assert is an effort to conduct discovery which is foreclosed by the Decision and Order dated March 16, 2022, is precisely the kind of abuse this Court is authorized to prevent. The motion for a protective order thus is granted. There shall be no deposition of Stuart Safier in connection with this action.
Accordingly, it is hereby
ORDERED that the branch of the motion which seeks to quash the subpoena ad testificandum dated January 9, 2023 served on nonparty Stuart Safier is granted, and the said subpoena is quashed; and it is further
ORDERED that the branch of the motion seeking a protective order is granted, and the deposition of non-party Stuart Safier shall not be taken in this action; and it is further
ORDERED that, within ten (10) days of the date hereof, plaintiff shall serve a copy of this Decision and Order, with notice of entry, upon all other parties, and shall file proof of said service via NYSCEF; and it is further
ORDERED that the parties shall appear for virtual compliance conference on June 21, 2023 at 11:00 a.m.
The foregoing constitutes the Decision and Order of the Court.