Malabranch v Liberty Fruit & Produce Corp.

[*1] Malabranch v Liberty Fruit & Produce Corp. 2012 NY Slip Op 52335(U) Decided on December 19, 2012 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2012
Supreme Court, Queens County

Ronald Malabranch, Plaintiff,

against

Liberty Fruit & Produce Corp., 117 LIBERTY REALTY CORP., and MAE SOON KIM, , Defendants.



28250/07

Charles J. Markey, J.

The following papers numbered 1 to 6 read on this motion:

Papers Numbered

Order to Show Cause - Affirmation - Exhibits ...........................................1 - 3

Affirm. In Opp.-Exhibits - Memo. Of Law................................................4 - 6

The plaintiff, by Order to Show Cause seeks an order (1) striking defendant's answer; (2) precluding defendant from offering testimony at trial; or, in the alternative;

(3) compelling defendant to complete discovery and appear for additional depositions; and (4) awarding sanctions.

This is an action for personal injuries allegedly sustained by plaintiff due to a fall, allegedly occurring on November 12, 2004 at defendant's fruit store at 117-119 Liberty Avenue, Richmond Hill, New York. A summons and complaint were filed on November 13, 2007 and issue was joined.

The deposition of the defense witness was held on July 25, 2012. Pursuant to the order of this court Rolando "Oscar" Perez was produced for deposition. Plaintiff on the within motion contends that he was not able to complete the deposition of this witness on that [*2]date due to time constraints and requests that the witness be produced again. Conspicuously absent from this motion is the transcript of deposition of this individual. According to defense counsel, this witness was deposed for over four hours and thoroughly questioned by counsel for plaintiff. As plaintiff herein has failed to make any sort of showing that a further deposition of Mr. Perez is necessary, plaintiff's application for Mr. Perez to be produced again is denied.

Similarly, plaintiff's request for the depositions of five additional employees of defendant is also denied. This Court has previously given plaintiff a lot of latitude. Such generous discretion should not be misinterpreted as a license to engage in a fishing expedition.

Again, in this regard, plaintiff has failed to demonstrate that the employee already deposed, namely, Mr. Perez, had insufficient knowledge or was otherwise inadequate, and that the employees whom plaintiff seeks to depose can offer information that is material and necessary to the prosecution of the case. See, Schiavone v Keyspan Energy Delivery NYC 89 AD3d 916 [2nd Dept. 2011]. Plaintiff's motion, in fact, does not speak to the additional depositions sought at all. Plaintiff, instead, merely attaches a letter previously sent to defendant requesting that five additional employees be produced, without further explanation.

This Court finds plaintiff's remaining applications to be without basis and as such are also denied.

This constitutes the decision and order of this Court. Any party may serve notice of entry of this decision attaching a copy of this decision bearing the date stamp of entry by the County Clerk.

Dated: December 19, 2012

______________________________

Hon. Charles J. Markey

J.S.C.