Dicenso v Wallin

Dicenso v Wallin 2013 NY Slip Op 05612 Decided on August 14, 2013 Appellate Division, Second 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 August 14, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
RUTH C. BALKIN
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2013-00772
(Index No. 5412/11)

[*1]Dina Dicenso, appellant,

v

David Wallin, et al., respondents.




Meister Seelig & Fein LLP, New York, N.Y. (Howard S. Koh of
counsel), for appellant.
Aaron H. Pierce, Brooklyn, N.Y. (Matthew C. Heerde of
counsel), for respondents.


DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), dated December 20, 2012, as denied those branches of her motion which were to compel additional nonparty depositions and additional nonparty document discovery.

ORDERED that the order is affirmed insofar as appealed from, with costs.

A party seeking disclosure from a nonparty witness must demonstrate that the disclosure sought is material and necessary, and must set forth the "circumstances or reasons" why disclosure is "sought or required" from such nonparty witness (CPLR 3101[a][4]; see Kooper v Kooper, 74 AD3d 6, 10, 17; Kondratick v Orthodox Church in Am., 73 AD3d 708, 708-709; Tenore v Tenore, 45 AD3d 571). Here, the plaintiff failed to demonstrate that additional testimony from the nonparty witnesses or the information sought would be material and necessary to the prosecution of this case (see CPLR 3101[a]; Farmer v Nostrand Ave. Meat & Poultry, 37 AD3d 653, 654; Matter of Lutz v Goldstone, 31 AD3d 449, 450-451). Accordingly, the Supreme Court properly denied those branches of the plaintiff's motion which were to compel additional nonparty depositions and additional nonparty document discovery.
ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court