Gjonbalaj v 317 W. 89th St. LLC

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Gjonbalaj v 317 W. 89th St. LLC 2011 NY Slip Op 33411(U) November 30, 2011 Supreme Court, New York County Docket Number: 109920/2008 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNEDON I212312011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY r I1 I II Index Number : 109920/2008 GJONBALAJ, ALI INDEX NO, MOTION DATE VS. MOTION SEQ. NO. 317 WEST 89TH STREET I SEQUENCE NUMBER : 006 II I SUBPOENA DUCES TECUM 0% MOTION CAL. NO. I thla motlon tolfor - PAPERS NUMBERED Notlce ot Motion/ Order to Show Cause - Affldavlta - Exhlblts ... Answering Affldavlts - Exhibits Replylng Affldavlts Cross-Motion: 0 Yes p No Upon the foregolng papers, it I ordered that this rnotlon s decided per the menlorandurn decision dated \nhich disposes oi Imtian seyuence{s) no. FILED NEW YORK COUNTY CLERKS OFFICE 0 FINAL DISPOSITION NON-FINAL DISFOSITION Check if appropriate: 0 DO NOT POST n REFERENCE 0 SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. Check one: [* 2] Plaintiffs, Index No.: 109920/2008 "against- THE 3 17 WEST 8gTHSTREET LLC C/O SAMSON DECISION AND ORDER MANAGEMENT CONDOMINIUM, THE 3 17 WEST 89TH CONDOMINIUM AND FOUR STAR GENERAL CLEANING COW. FILED NEW YORK COUNTY CLERK'S OFFICE Third-party Plaintiffs, Index No.: 590421/2009 -againstFOUR STAR GENERAL, CLEANING COW, For Plaintiff: Daniel Davidovic, Esq. 2509 Avenue U Brooklyn, NY 11229 For DefendantdThird-Party Plaintiffs 3 17 West 8gthLLC C/O Samson Management and the 3 17 W 89' Street Condomium Malapero & Prisco LLP 295 Madison Ave. New York, NY 10017 Papers considered in review of this motion to dismiss: Notice of Motion . . . . . . . . . . . . .1 Aff in Support . . . . . . . . . . . . . . . -2 Aff i Opposition. . . . . . . . . . . . . 3 n 1 [* 3] HON. SALIANN SCARPULLA, J.: In this action to recover damages for personal injuries and wrongful death, plaintiff Ali Gjonbalaj, as Administrator of the Estate of Alen Gjonbalaj, deceased ( plaintiff ), moves for an issuance of subpoenas on non-parties Erik Eastbrook ( Eastbrook ) of the New York City Police Department (NYPD) and Aaron Rosen, M.D. ( Rosen ), of the Officeof Chief Medical Examiner for the City of New York. On July 28, 2007, Alen Gjombalaj ( Gjombalaj ) was allegedly murdered in his apartment located in the 3 17 West 89 Street condominium. Gjombalaj was the condominium s superintendant. Ali Gjonbalaj, the Administrator of his estate, commenced this action in July 2008, alleging that defendants negligently operated, maintained and controlled the building, thus permitting an unidentified intruder to gain access to the apartment. Plaintiff now moves for an issuance of subpoenas on non-parties Eastbrook and Rosen. On August 17, 201 1, plaintiffs withdrew their motion as to Rosen. However, they still seek Easterbrook s deposition, as well as documents from Easterbook relating to the GjombaIaj murder investigation. Plaintiff asserts that Easterbrook could testify to the condition of the situs of the accident at the time he entered the apartment. 2 [* 4] . 4 I In opposition, defendants 3 17 West 89* Street LLC and 3 17 West 89 Street LLCc/o Samson Management ( defendants ) argue that the Court should deny plaintiff s motion because the proposed subpoenas are facially defective for failing to explain why the discovery from Eastbrook is necessary. Defendants hrther argue that plaintiffs have not established adequate special circumstances to require the deposition and production of documents from Easterbrook. Defendants also maintain that the requested disclosure would impair the criminal investigation into Gjombalaj s murder. Discusgiop Disclosure may be sought from a non-party upon notice stating the circumstances or reasons such disclosure is sought or required. CPLR 5 3 lOl(a)(4). Further, there must be adequate special circumstances to support the disclosure. Brady v. Ottaway Newspapers, Inc., 63 N.Y.2d 103 1, 1032 (1984). Whether or not adequate special circumstances have been shown to support discovery against a nonparty is generally a determination to be made upon a review of the facts, and rests within the sound discretion of the court to which application is made. Brady, 63 N.Y.2d at 1032. Here, plaintiff has not articulated adequate special circumstances to support discovery from non-party Easterbrook. Plaintiff does not indicate that it has made any efforts to obtain the information from another source, nor has plaintiff asserted that attempting to do so would be fruitless. See Cirale v. 80 Pine Street Corp., 35 N.Y.2d 113, 114 (1974) (holding that a wrongful death plaintiff did not show adequate special 3 [* 5] circumstances to support non-party discovery-from a government agency where plaintiff did not indicate what endeavors, if any, were undertaken to obtain independent evidence). In accordance with the foregoing, it is ORDERED that the motion seeking a subpoena and a subponeas duces tecum by plaintiff Ali Gjonbalaj, as Administrator of the Estate of Alen Gjonbalaj, deceased, is denied. This constitutes the decision and order of the Court. Dated: New York, New York November @, 20 11 ENTER: I I Saliann scarpu~~a,s . ~ . J. FILED NEW YORK COUNTY CLERKS OFFICE Because plaintiffs have not articulated adequate special circumstances to warrant discovery from Easterbrook, this Court does not decide whether the subpoenas are facially defective or whether the information seeking discovery from Easterbrook would impair an ongoing criminal investigation. 4 U

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