Kontomichalos v County of Nassau

[*1] Kontomichalos v County of Nassau 2006 NY Slip Op 52670(U) [21 Misc 3d 1139(A)] Decided on January 3, 2006 Supreme Court, Nassau County LaMarca, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 3, 2006
Supreme Court, Nassau County

Deborah J. Kontomichalos, Plaintiff,

against

County of Nassau, MTA - LONG ISLAND BUS a/k/a METROPOLITAN SUBURBAN BUS AUTHORITY, and GLADSTONE A. CLARKE, Defendants.



19167/03



Manoussos & Associates, PC

Attorneys for Plaintiff 400 Garden City Plaza

Garden City, NY 11530

Morris, Duffy, Alonso & Faley, LLP

Attorneys for Defendants

2 Rector Street, 2nnd Floor

New York, NY 10006

William R. LaMarca, J.

Defendant, MTA-LONG ISLAND BUS a/k/a/ METROPOLITAN SUBURBAN BUS AUTHORITY (hereinafter referred to as the "MTA") moves for an order, pursuant to CPLR §2304 and §3103, quashing several trial subpoenas, dated July 19, 2005, and granting a protective order to the MTA on the ground that the subpoenas seek materials that are "immune from disclosure", staying the trial of this matter pending determination of the motion and granting costs for the necessity of bringing the motion. In a subsequent motion, defendants move for an order vacating the plaintiff's Note of Issue and Statement of Readiness and extending defendants' time to file a motion for summary judgment until 120 days following the completion of discovery. Plaintiff, DEBORAH J. KONTOMICHALOS, opposes the motions.

The Court notes that, on October 28, 2005, the Note of Issue in this matter was vacated by Hon. Kenneth Davis on the ground that the case was not ready for trial. On said date, the parties agreed to a discovery schedule before the undersigned with respect to outstanding discovery on a newly alleged injury.

Background

This action arises out of a motor vehicle accident that occurred on January 24, 2003 in the vicinity of Washington Street and Peninsula Boulevard, in Nassau County, New York, when plaintiff's car came in contact with an MTA bus driven by defendant, GLADSTONE [*2]A. CLARKE. In the verified complaint, plaintiff alleges that she sustained serious and permanent injuries in said accident which was solely caused by the negligence and recklessness of the defendants in the use, operation and/or maintenance of their motor vehicle.

On the motion to quash, the MTA states that plaintiff has issued three (3) trial subpoenas that are "palpably improper" and that a protective order should be directed as plaintiff is improperly using the subpoenas as a substitute for pre-trial disclosure, citing Matter of Terry, 81 NY2d 1042, 601 NYS2d 452, 619 NE2d 389 (C.A. 1993); People v Coleman, 75 Misc 2d 1090, 349 NYS2d 298 (Sup. Nassau, 1973) and Soho Generation New York, Inc. v Tri-City Insurance, Inc., 236 AD2d 276, 653 NYS2d 924 (1st Dept. 1997).

The first subpoena, a Judicial Subpoena Duces Tecum issued to the MTA, with a return date of August 29, 2005, seeks a "[c]omplete copy of employment file, including driving record, driver training and driving history, any and all disciplinary notice concerning work practices, driving record for the motor vehicle accident of 1-24-2003 and/or prior motor vehicle accidents" of defendant, GLADSTONE a. CLARKE. The second subpoena, a Judicial Subpoena issued to "John Doe: as the supervisor of employee and defendant, GLADSTONE A. CLARKE. . .", with a return date of September 19, 2005, summons him to give testimony at trial and to bring the same documents as detailed above. The third subpoena, a judicial subpoena issued to defendant, GLADSTONE A. CLARKE, with a return date of September 19, 2005, summons him to give testimony at trial and to bring "any and all documents, records and papers relating to the above captioned action". The MTA states that, while some of the records will be supplied, plaintiff's demand for discovery "cloaked as a subpoena" is inappropriate, vexatious and burdensome and that a protective should be granted.

In opposition to the motion to quash, plaintiff states that the trial subpoenas request information that is material and necessary to the litigation before the court and should be provided. Counsel for plaintiff points out that all of the information sought in the trial subpoenas was previously requested in Demands for Discovery and Inspection and unilaterally denied by the MTA as "privileged". The Court notes that no demonstration has been made as to the nature of the "privilege" and, indeed, a prior order of the Court, dated April 29, 2005, directed defendants to provide responsive documents to plaintiff's discovery requests or a detailed affidavit by someone with firsthand knowledge explaining each particular document's unavailability. The court directed a striking of defendant's answer for a failure to comply.

The Law

CPLR §3101(a) requires the "full disclosure of all information that is material and necessary to the defense or prosecution of an action". The "material and necessary" requirement directed in CPLR §3101(a) is to be liberally construed to require disclosure where the matter sought will assist in trial preparation by sharpening the issues and reducing delay. Andon v 302-304 Mott Street Associates, 94 NY2d 746, 709 NYS2d 873, 731 NE2d 589 (C.A. 2000), citing Allen v Crowell-Collier Publishing Co., 21 NY2d 403.

A subpoena duces tecum for use at trial or hearing and the denial of a motion to quash such subpoena duces tecum is not the equivalent of an order of disclosure, but instead merely amounts to a direction to the subpoenaed party to have the documentation [*3]in Court so the court may make an appropriate direction with respect to such documents. Hickok v Hickok, 64 AD2d 412, 410 NYS2d 81 (1st Dept. 1978). However, it is the Court's view that the MTA's motion to quash the trial subpoenas at this point in time may prematurely limit the power of the trial Court to rule on the facts and to make an appropriate direction at the time of trial (Hickok v Hickok, supra ), particularly in light of the vacatur of the Note of Issue which reopened the discovery phase of this action.

Discussion

After a careful reading of the submissions herein, it is the judgment of the Court that plaintiff is entitled to the records requested in the "trial "subpoenas, to wit: the "[c]omplete copy of employment file, including driving record, driver training and driving history, any and all disciplinary notice concerning work practices [not just from the date of the accident but during the full term of his employment]), driving record for the motor vehicle accident of 1-24-2003 and/or prior motor vehicle accidents" of defendant, GLADSTONE A. CLARKE, which, in fact, have been requested numerous times before in the form of Demands for Discovery and Inspection. The defendants reliance on the cited cases is misplaced and inapposite to the circumstances herein. Moreover, all of the cases hold that the purpose of a judicial subpoena duces tecum is to compel the production of specific documents that are relevant and material to the facts at issue in a pending proceeding and the MTA has failed to show that the documents requested were not relevant and material evidence. Based on the foregoing, as a matter of discretion to prevent substantial prejudice, the Court holds that the plaintiff is entitled to the requested documents now in the rubric of "discovery". Accordingly, it is hereby

ORDERED, that defendant's motion to Strike the Note of Issue and Statement of Readiness is denied, as moot; and it is further

ORDERED, that, within thirty (30) days from the date of this order, the MTA shall provide the "[c]omplete copy of employment file, including driving record, driver training and driving history, any and all disciplinary notice concerning work practices [not just from the date of the accident but during the full term of his employment], driving record for the motor vehicle accident of 1-24-2003 and/or prior motor vehicle accidents" of defendant, GLADSTONE A. CLARKE; and it is further

ORDERED, that a Status Conference is scheduled in this matter for February 15, 2006 at 9:30 A.M. before the undersigned, at which time any outstanding issues of discovery and Certification of this matter for trial will be addressed, together with a time frame for any dispositive motions.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: January 3, 2006

____________________________

William R. LaMarca, J.S.C.

TO:

kontomichalos-nassau & mta,#

03,#

04/discovery