Angert v Top Hat Uniform, Inc.
Annotate this CaseDecided on June 23, 2004
Supreme Court, Kings County
Yekaterina Angert, Plaintiff,
against
Top Hat Uniform, Inc., AND ALAN STEINGER, Defendants.
28706/2003
ATTORNEY FOR THE PLAINTIFF
Dealy & Silberstein
225 Broadway, Suite 1405
New York, NY 10007-3001
ATTORNEY FOR THE DEFENDANTS
Muholland, Minion & Roe
374 Hillside Avenue
Williston Park, NY 11596
Martin Schneier, J.
In this employment discrimination case, plaintiff alleges that, while she was employed by defendant Top Hat Uniform, Inc., ("Top Hat"), she engaged in a consensual sexual relationship with defendant Alan Steinger. Plaintiff has noticed Alan Steinger's wife, Marion Steinger for an examination before trial ("EBT"). Although Marion Steinger is currently an employee of Top Hat, she was not an employee when the acts of alleged discrimination took place. Marion Steinger moves for an Protective Order to prevent the EBT and order the Notice of EBT stricken.
As a general rule, parties to an action are subject to disclosure. (NY CPLR § 3101[a][2]). Where a party is a corporation, the officers, directors, members, agents or employees of the corporation are subject to deposition (NY CPLR § 3101[a][1]). "However, the corporation itself has the right to determine which of its officers with knowledge of facts may appear for pretrial examination." (Defina v. Brooklyn Union Gas Company, 217 AD2d 681, 682 [2d. Dep't. 1995]). Although a corporation may name its witnesses in the first instance, an opposing party is still allowed to depose and obtain information from other corporate employees upon "a detailed showing of the necessity for taking further depositions." (Id. at 682 (internal [*2]citations omitted)). When disclosure from a non-party is sought, it can only occur after a showing of "adequate special circumstances" (Dioguardi v. St. John's Riverside Hospital, 533 NYS2d 915, 916 [2d Dep't. 1988]). This exists when the desired information cannot be obtained from a different avenue. In order for disclosure of a non-party to proceed, the court itself will determine if the moving party has produced sufficient material as to create an adequate of showing of special circumstances (Id. at 916). A Court may grant a protective order in order to "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR § 3103(a)).
In this case, the information sought from the witness is related to knowledge she obtained as a Alan Steinger's spouse, not as an employee of Top Hat. Accordingly, the Court finds that, for the purposes of this motion, she should be treated as a non-party. The Court also finds that plaintiff has failed to make an adequate showing of special circumstances and that the EBT would expose Marion Stenger to unreasonable embarrassment.
The motion for a protective order is, therefore, granted and the Notice for an Examination Before Trial of Marion Steinger is stricken.
This shall constitute the Decision and Order of the Court.
______________________
J.S.C.
APPEARANCES
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