Battaglia v Town of Bethlehem

[*1] Battaglia v Town of Bethlehem 2006 NY Slip Op 52650(U) [21 Misc 3d 1117(A)] Decided on February 14, 2006 Supreme Court, Albany County McNamara, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 14, 2006
Supreme Court, Albany County

Anthony A. Battaglia, Individually and as President of BATTAGLIA FRUIT & PRODUCE CO., INC., CALIFORNIA PRODUCE CO., INC. and CALIFORNIA PRODUCE RETAIL, a/k/a CALIFORNIA MARKETPLACE, Plaintiffs,

against

The Town of Bethlehem, its officers, agents, servants, and/or employees, Defendant.



4690-01



CADE & SAUNDERS

Attorneys for Plaintiffs

(Alan M. Blumenkopf, Esq. of Counsel)

4 Pine Street

Albany, New York 12207

PENNOCK, BREEDLOVE & NOLL, LL

Attorneys for Defendant

(John H. Pennock, Jr., Esq. of Counsel)

1407 Rt. 9 North

Clifton Park, New York 12065

Thomas J. McNamara, J.

Defendant has moved for an order quashing two non-party witness subpoenas which were served after the Court ordered time to complete discovery had expired and while a motion for summary judgment was pending. While the instant motion was brought by order to show cause, it did not include a stay of the scheduled depositions. There is also no indication that defendant [*2]notified the witnesses that their examination was stayed as required by CPLR R 3106 (b). Plaintiffs conducted the deposition of one of the witnesses without defendant's counsel present. The other witness failed to appear.

CPLR R 3214 (b) provides that service of a motion for summary judgment stays all disclosure until the motion is decided unless the court orders otherwise. While plaintiffs' attorneys informed the Court that the depositions were needed to oppose the motion for summary judgment and requested an adjournment of the motion, plaintiffs did not specifically request, nor did they obtain an order relieving them of the automatic stay. It was therefore improper to conduct the deposition.

The circumstances indicate that the depositions may be warranted. Plaintiffs' attorney's letter request for an adjournment to the Court indicates that one of the witnesses unexpectedly refused to supply an affidavit in fear of repercussions from the Town. Such fact warrants continuation of discovery after the time to complete discovery set by order. Moreover, even though the witnesses have not been disclosed as required by defendant's combined demands, defendant has not shown any prejudice caused by such failure. However, the notices to take depositions of non-party witnesses failed to set forth the circumstances or reasons warranting the depositions as required by CPLR § 3101 (a) (4). The were also served less than 20 days before the scheduled depositions, in violation of CPLR R 3106 (b).

Accordingly, the motion to quash the subpoenas is hereby granted without prejudice to service of proper notice and subpoenas. The deposition held in violation of the stay shall be deemed a nullity.

This memorandum shall constitute both the decision and the order of the Court. All papers, including this decision and order, are being returned to counsel for defendant. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

IT IS SO ORDERED!

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Dated: February 14, 2006Thomas J. McNamara

Albany, New YorkActing Supreme Court Justice