Massa v Lower Manhattan Dev. Corp.

Massa v Lower Manhattan Dev. Corp. 2016 NY Slip Op 06264 Decided on September 29, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 29, 2016
Mazzarelli, J.P., Acosta, Saxe, Moskowitz, Gesmer, JJ.
1772N 100115/09

[*1] Vincent Massa, Plaintiff-Respondent,

v

Lower Manhattan Development Corporation, et al., Defendants, Bovis Lend Lease LMB, Inc., et al., Defendants-Appellants.

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone of counsel), for appellants.

The Altman Law Firm, PLLC, New York (Michael T. Altman of counsel), for respondent.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered March 21, 2016, which denied defendants Bovis Lend Lease LMB, Inc. and Bovis Lend Lease, Inc.'s (Bovis) motion to quash a subpoena by plaintiff for a nonparty deposition, unanimously affirmed, without costs.

The motion court determined that the motion to quash was moot because the noticed deposition date had passed. This was erroneous, because the deposition had been adjourned to May 20, 2016. Moreover, both plaintiff and Bovis acknowledge that the deposition has not yet taken place.

Nevertheless, plaintiff demonstrated "unusual or unanticipated circumstances" and "substantial prejudice" warranting post-note-of-issue discovery (see 22 NYCRR 202.21[d]; Arons v Jutkowitz, 9 NY3d 393, 411 [2007]; Schroeder v IESI NY Corp., 24 AD3d 180 [1st Dept 2005]). Counsel's statement that he only realized the importance of the nonparty witness's testimony after filing the note of issue is sufficient.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 29, 2016

CLERK