Caban v Plaza Constr. Corp.
Annotate this CaseDecided on September 26, 2013
Supreme Court, Queens County
Richard Caban, Plaintiff,
against
Plaza Construction Corp., UBS REAL ESTATE INVESTMENTS, INC., FISHER-PARK LANE OWNER, LLC and FISHER-PARK LANE MANAGER CORP., Defendants. PLAZA CONSTRUCTION CORP., UBS REAL ESTATE INVESTMENTS, INC., FISHER-PARK LANE OWNER, LLC and FISHER-PARK LANE MANAGER CORP., Third-Party Plaintiffs, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and FOREST ELECTRICAL CORP., Third-Party Defendants.
15557/2007
Robert J. McDonald, J.
The following papers numbered 1 to 40 were read on this motion and cross-motion by the defendants/third-party plaintiffs for an order pursuant to CPLR 2308(a) and Judiciary Law § 753(A)(5) seeking to hold non-parties Jonathan Caban, Jeremiah Caban, Joel Caban and Jahzeel Caban in contempt for failure to comply with a subpoena compelling them to appear for an examination before [*2]trial; and the separate motion and cross-motion of the plaintiff for an order quashing said subpoenas:
Papers
Numbered
Defendant Plaza's Notice of Motion-Exhibits................1 - 5
Plaintiff's Affirmation in Opposition......................6 - 9
Plaintiff's Notice of Cross-Motion-Exhibits...............10 - 13
Defendant's Affirmation in Reply .........................14 - 17
Plaintiff's Notice of Motion to Quash.....................18 - 22
Defendants' Affirmation in Opposition to Motion to Quash..23 - 25
Defendant's Cross-Motion for Contempt.....................26 - 29
Plaintiff's Affirmation in Opposition.................... 30 - 33
Defendants Reply..........................................34 - 36
Plaintiffs Reply..........................................38 - 40
________________________________________________________________
This is an action for damages for personal injuries allegedly sustained by the plaintiff, a journeyman carpenter, in a work related injury when he fell off a scaffold on April 7, 2006. As a result of the accident, the plaintiff allegedly sustained injuries to his back requiring surgical fusion and injuries to his knees which also required surgical intervention. An action was commenced by the filing of a summons and complaint on June 18, 2007.
On April 9, 2013, Judicial Subpoenas for Jonathan Caban, Jeremiah Caban, Joel Caban, and Jahzeel Caban, plaintiff's children, were served on plaintiff by defendant's counsel Katherine A. Giovacco, Esq. directing that the children appear at the Courthouse on May 7, 2013 for the purpose of an examination before trial. In response, plaintiff's counsel, Brian Hurley, Esq., requested that the subpoenas be withdrawn or in the alternative he would bring a motion to quash. The non-party witnesses did not appear for deposition on May 7, 2013.
Defendants contend that pursuant to CPLR 3101(a)(4), they are entitled to take the depositions of the plaintiff's children as they are in possession of information essential to the defense of this matter, including, but not limited to, "the aftermath of the accident, Mr. Caban's physical limitations before and after the accident, and Mr. Caban's role as caretaker of four [*3]children." Counsel states that the information is material because Mr. Caban testified at his examination before trial regarding his physical complaints and limitations as a result of the accident including his inability to play with his children and his inability to play baseball, run and jump. Mr. Caban also testified that since his accident he has been the sole caretaker of his four children. Defendants claim that examinations of the children are material and necessary so that the abovementioned matters may be investigated in detail. Defendants state that there is a disparity between what the plaintiff claims in his bill of particulars with respect to the extent of his injuries and how he proceeds with his daily activities. Counsel alleges that throughout discovery in this case plaintiff's credibility has been in issue. His rendition of the events, according to counsel, his injuries, his activities of daily living, and his perceived damages have been contradicted by documentary evidence and video surveillance evidence. Defendants seek to examine the children in this regard.
As the children failed to appear for the depositions and failed to comply with the subpoenas, the defendants move for an order compelling said non-party witnesses to appear for a deposition or in the alternative be held in contempt for their wilful failure to appear and comply with the subpoenas.
Plaintiff opposes the motion for contempt and cross-moves for an order pursuant to CPLR 2304 directing that the subpoenas be quashed and for a protective order pursuant to CPLR 3103. Plaintiff has also brought a separate notice of motion seeking to quash the subpoenas pursuant to CPLR 2304 and for a protective order pursuant to CPLR 3103. The plaintiff's daughter Jahzeel is presently age nine and was two at the time the accident, his son Joel is now fourteen and was six at the time of the accident; Jeremiah is fifteen now and was seven at the time of the accident and Jonathan is sixteen now and was nine at the time of the accident. Counsel states that service on the three children over age fourteen was improper because they were not served personally pursuant to CPLR 309(a). Pursuant to said section two copies of the subpoena must be served, one on the infant and one on the parent or guardian (see Kolodzinski v Ferreiras, 168 AD2d 431[2d Dept. 1990]). The affidavits of service submitted by the defendants indicate that service was made by serving their father Richard Caban.
Counsel also argues that the remedy of contempt is not available as the subpoenas although styled as "Judicial Subpoenas" are in actuality non-judicial subpoenas because they state that the depositions will take place at counsels office in [*4]Jericho rather than the Courthouse. Counsel also argues that the subpoenas are facially defective pursuant to CPLR 3101(a)(4) as they do not put the witness on notice as to the circumstances or reasons such disclosure is sought (see Kooper v Kooper,74 AD3d 6 [2d Dept. 2010]). Lastly, counsel argues that there are no direct facts for the children to testify to and that the information sought is in pursuit of collateral matters.
In reply, defendants argue that depositions of the children are warranted. In this regard counsel states that, "not only is the testimony material and necessary to the defense so that they can obtain an evaluation of the plaintiff's alleged injuries, his current medical condition, and his ability to carry on activities of daily living, but it is also the only way to obtain the evidence." Counsel claims that the children are the only witnesses that can testify to plaintiff's daily activities.
Upon review and consideration of the defendants' motion and cross-motion, plaintiff's affirmation in opposition and cross-motion, and defendants' reply thereto this court finds as follows:
CPLR 3101 (a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action." The New York Court of Appeals has determined that the words "material and necessary" should be interpreted liberally to require disclosure of any facts bearing on the controversy which will assist in preparation for trial (see Andon v 302-304 Mott St. Assocs., 94 NY2d 740 [2000]). However, unlimited disclosure, is not required (see Spohn-Konen v Town of Brookhaven, 74 AD3d 1049 [2d Dept. 2010]).
This court finds that the plaintiff's respective motion and cross-motion to quash the subpoena and for a protective order pursuant to CPLR 3103 and CPLR 2304 is granted and the motion and cross-motion of the defendants to compel the children to appear for a non-party deposition and for an order of contempt for failing to comply with the defendants' judicial subpoenas is denied. Contrary to the defendants' contention, further discovery with respect to the nonparty children is inappropriate herein and not "material and necessary" in the defense of this action. As stated by Appellate Division, Second Department in Kooper v Kooper, 74 AD3d 6 [2d Dept.2010], "more than mere relevance and materiality is necessary to warrant disclosure from a nonparty" Further, the court statd in Kooper, "as a matter of policy, nonparties ordinarily should not be burdened with responding to subpoenas for lawsuits in which they have no stake or interest unless the particular circumstances of the case require their [*5]involvement."
Here, the defendants have had an extensive examination before trial of the plaintiff and his wife and have surveillance video which they believe impeaches the plaintiff's credibility as to the extent of the injuries. The testimony of the plaintiff is sufficient in that regard, and any information obtained from the children as to the plaintiff's activities of daily living, his physical limitations and his ability to care for his children would be cumulative of information previously provided by the plaintiff, and rather than being material and necessary, is sought merely to impeach the plaintiff's credibility (see CPLR 3101[a][4]; Rodolico v Rodolico, 971 NYS2d 64 [2d Dept. 2013]; Kooper v Kooper, 74 AD3d 6 [2d Dept. 2010). Further, this court finds that the unnecessary and unwarranted questioning of the children would only cause unreasonable annoyance and embarrassment(see CPLR 3103[a]). Defendants have failed to demonstrate that the questioning of the children, which could include personal matters of these non-parties, and the discovery sought herein is anything more than a fishing expedition.
Thus, the defendants failed to demonstrate that additional testimony from the nonparty witnesses or the information sought would be material and necessary to the defense of this case (see Dicenso v Wallin, 109 AD3d 508 [2d Dept. 2013]). The defendants' contentions regarding their right to conduct nonparty discovery in this case are without merit. Further, the defendants failed to make any showing that the requested information regarding the plaintiff's activities is not available from other sources, including the plaintiff, the IME physicians and and plaintiff's own physicians (see Habib v Best Yet Mkt. of Hicksville, Inc., 101 AD3d 1083 [2d Dept. 2012]; Cotton v Cotton, 91 AD3d 697 [2d Dept. 2012]; Menkes v Beth Abraham Servs., 89 AD3d 647[1st dept. 2011]; Conte v County of Nassau, 87 AD3d 558 [2d Dept. 2011]; Kooper v Kooper, 74 AD3d 6 [2d Dept. 2010]; Reich v Reich, 36 AD3d 506 [1st Dept.2007]).
Dated: September 26, 2013
Long Island City, NY
[*6]______________________________
ROBERT J. MCDONALD
J.S.C.
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