Guilfoyle v Parkash

[*1] Guilfoyle v Parkash 2012 NY Slip Op 51265(U) Decided on July 16, 2012 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2012
Supreme Court, Dutchess County

Brendan Patrick Guilfoyle, Jr., Plaintiff,

against

Ved Parkash and Aisha Parkash, Defendants.



0984/12



Martin L. Brothers, Esq.

Attorney for Plaintiff

Seven Livery Lane

North Salem, new York 10560

Craig P. Curcio, Esq.

Attorney for Defendants

384 Crystal Run Road, Suite 202

Middletown, New York 10941

James D. Pagones, J.

Plaintiff Brendan Patrick Guilfoyle, Jr. moves for an order pursuant to CPLR R3124 compelling defendant Ved Parkash to respond to written interrogatories served pursuant to CPLR §3130(1) and compelling Aisha Parkash to appear for a deposition. The defendants oppose the instant application.

The underlying action sounds in negligence. The plaintiff asserts that defendant Aisha Parkash was negligent in turning off outdoor lights and failing to warn the plaintiff of the existence of a retaining wall which allegedly caused the plaintiff to fall and injure himself. The subject premises is owned by Ved Parkash, the father of Aisha Parkash, and the plaintiff alleges defendant Ved is liable as a result of his negligent supervision.

The plaintiff served a notice to take the deposition of Aisha Parkash together with written interrogatories directed towards Ved Parkash. Although there is no dispute that the plaintiff does not seek to obtain written interrogatories and the deposition of the same defendant, the defendants object to the service of both discovery devices on the basis that CPLR §3130 prohibits the service of interrogatories and conducting a deposition of the same party without leave of the court. The defendants contend that they are united in interest and therefore must be viewed as the same party for purposes of CPLR §3130 because both defendants have retained the same attorney.

The court is unpersuaded by the defendants' contention. As noted in the commentary to CPLR §3130, "[i]n a case based solely on negligence...the plaintiff can elect to use [*2]interrogatories against defendant A while seeking a deposition against defendant B." (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3130:3). The defendants' decision to retain the same attorney cannot act to curtail disclosure devices otherwise available to the plaintiff. Moreover, the defendants' argument would, in essence, preclude the deposition of both defendants were the court persuaded that they were united in interest and considered as one party for purposes of the instant application. Clearly, this is not the intention of CPLR §3130 and the defendants' attempt to use the statute as a sword rather than a shield is untenable.

The defendants' reliance on Liemer v. Kings Highway Hosp. Ctr., 140 Misc 2d 94 (Sup. Ct., Kings County 1988), is misplaced. In Liemer, the court found that the defendants, both of who were represented by the same law firm, were precluded by CPLR §3130(1) from serving both interrogatories and a demand for a bill of particular on the plaintiff. The facts indicated that the law firm served a demand for a bill of particulars on behalf of one defendant while also serving written interrogatories on behalf of the other defendant. The court reasoned that the joint representation of the defendants created a unity of interest requiring both defendants be regarded as one, thereby preventing the defendants from serving both interrogatories and a demand for a bill of particulars. Liemer, while discussing CPLR §3130, is critically dissimilar to the instant matter. Rather than finding the party serving the demands to be united in interest, here the defendants seek to have the party being served found united in interest and thereby limit the disclosure available to the plaintiff.

Accordingly, the plaintiff's motion is granted and defendant Ved Parkash is directed to respond to the outstanding written interrogatories within twenty (20) days of the date of this decision and order. It is further ordered that defendant Aisha Parkash is directed to appear for a deposition within thirty (30) days of the date of this decision and order at a date, time and place as is agreeable to the parties. Adjournments are only granted with leave of the court.

The Court read and considered the following documents upon this application:

PAGES NUMBERED

1.Notice of Motion.........................1-2

Affirmation-Brothers................1-3

Exhibit.............................1

Memorandum of Law...................1-7

2.Affirmation in Opposition-Curcio.........1-8

Exhibits............................A-D

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

July 16, 2012

ENTER

[*3]

HON. JAMES D. PAGONES, A.J.S.C.