Opinion
06-01-2016
Shantelle WALKER, appellant, v. CITY OF NEW YORK, et al., respondents.
William Pager, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Elizabeth I. Freedman of counsel), for respondents.
William Pager, Brooklyn, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Elizabeth I. Freedman of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.H.O.), dated January 14, 2015, as denied that branch of her renewed motion which was to compel the defendants to produce an additional witness for deposition. ORDERED that the order is affirmed insofar as appealed from, with costs.
Although a municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for a deposition, a plaintiff may demand production of additional witnesses when (1) the officers or employees already deposed had insufficient knowledge or were otherwise inadequate as witnesses, and (2) there is a substantial likelihood that the person sought for deposition possesses information which is material and necessary to the prosecution of the case (see Brevetti v. City of New York, 79 A.D.3d 958, 914 N.Y.S.2d 240 ; Filoramo v. City of New York, 61 A.D.3d 715, 877 N.Y.S.2d 191 ; Douglas v. New York City Tr. Auth., 48 A.D.3d 615, 616, 852 N.Y.S.2d 368 ). The burden is upon the examining party to make a showing as to both factors (see Bentze v. Island Trees Union Free School Dist., 92 A.D.3d 709, 938 N.Y.S.2d 464 ; Sladowski–Casolaro v. World Championship Wrestling, Inc., 47 A.D.3d 803, 804, 850 N.Y.S.2d 176 ).
Here, upon renewal, the plaintiff failed to demonstrate that the defendants' representative who had already been deposed had insufficient knowledge or was otherwise inadequate as a witness (see Thristino v. County of Suffolk, 78 A.D.3d 927, 910 N.Y.S.2d 664 ; Carter v. New York City Bd. of Educ., 225 A.D.2d 512, 638 N.Y.S.2d 770 ), and that there was a substantial likelihood that the person sought by the plaintiff for an additional deposition possessed information which was material and necessary to the prosecution of the action (see Bentze v. Island Trees Union Free School Dist., 92 A.D.3d at 709, 938 N.Y.S.2d 464 ; Conte v. County of Nassau, 87 A.D.3d 559, 560, 929 N.Y.S.2d 742 ; Douglas v. New York City Tr. Auth., 48 A.D.3d at 616, 852 N.Y.S.2d 368 ). Accordingly, that branch of the plaintiff's renewed motion which was to compel the defendants to produce an additional witness for deposition was properly denied.
HALL, J.P., COHEN, MILLER and BARROS, JJ., concur.