Lizardi v Bogale

[*1] Lizardi v Bogale 2016 NY Slip Op 51331(U) Decided on September 21, 2016 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 21, 2016
Supreme Court, Queens County

Ann M. Lizardi, Plaintiff,

against

Negussie Bogale, Defendant.



15987/2014
Robert J. McDonald, J.

The following papers numbered 1 to 25 read on this motion by defendant (seq. no. 3) and on this Order to Show Cause by non-party witness Gina Apa (seq. no. 4) for an Order pursuant to CPLR 2304 and 3103, quashing the subpoenas dated May 18, 2016 and June 10,206, seeking to take the deposition of non-party witness Gina Apa; and on this cross-motion by plaintiff (seq. no. 4) for an Order denying the applications to quash the subpoenas, granting continued discovery, striking defendant's answer, conditionally striking defendant's answer, and granting costs, attorneys' fees and sanctions in favor of plaintiff:

Papers Numbered

Notice of Motion (seq. no. 3)-Affidavits-Exhibits 1-5

Affirmation in Opposition-Exhibits 6-8

Affirmation in Reply-Exhibit 9-11

Order to Show Cause (seq. no. 4)-Affirmation-Exhibits-

Affidavit of Service 12-15

Affirmation in Opposition-Exhibits 16-18

Notice of Cross-Motion (seq. no. 4)-Affirmation 19-21

Defendant's Affirmation in Opposition to Cross-Motion 22-23

Affirmation in Opposition and Reply Affirmation 24-25

This is an action to recover damages for personal injuries sustained in a motor vehicle accident which occurred on June 19, 2014.

Plaintiff commenced this action by filing a summons and verified complaint on September 19, 2014. Defendant joined issue by service of a verified answer dated December 5, 2014. On May 19, 2016, pursuant to the Compliance Conference Order, plaintiff filed a Note of Issue.

As relevant to these applications, both plaintiff and defendant testified in their respective depositions on June 10, 2015 that they spoke with a Geico claims representative on the date of the accident. As the parties' testimony surrounding the circumstances of the accident are conflicting, plaintiff sought to obtain the audio tapes, transcript, and witness information of the Geico representative the parties spoke with. Defendant responded to such demand, noting that the demand "was overly broad as to content, vague, ambiguous, unduly burdensome and oppressive. . . attorney/client privilege. . . work product . . . prepared for in anticipation of litigation or trial." Plaintiff filed a motion to compel on March 4, 2016. The motion resulted in a So Ordered Stipulation dated April 4, 2016, ordering defendant to provide "a transcript and audiotape of the entire telephone call wherein the plaintiff telephoned Geico on the incident date, namely 6/19/14. If the defendant and his agents do not have the audiotape and/or transcript, defendant to provide an affidavit by an individual with knowledge to what happened to audiotape and transcript or a statement that the telephone call was never recorded and no records were made."

In response, defendant submitted the affidavit of Gina Apa, a claims examiner for Geico, dated May 3, 2016. Ms. Apa affirmed that she was the adjuster assigned to handle the claim associated with this matter. She reviewed her files for a copy of a written transcript and audio recording from plaintiff concerning the subject accident. She affirms that there is no known written transcript or known audio recording of plaintiff regarding the subject accident.

Plaintiff then served a Notice to Take Deposition dated May 18, 2016. Said Notice failed to state the circumstances or reasons such disclosure is sought or required from Ms. Apa in contravention of CPLR 3101(a)(4). A second Notice to Take Deposition dated June 10, 2016 was then served. Defendant and Ms. Apa now seek to quash the subpoena on the grounds that, inter alia, they are broad and exceed the permissible scope of matters material and necessary for plaintiff's prosecution of this matter. Additionally, counselors contend that the information sought by plaintiff is privileged as the material was obtained in anticipation of litigation and plaintiff has failed to demonstrate a substantial need for the materials.

In opposition, plaintiff's counsel contends that the information is necessary to the prosecution of the instant action. Specifically, counsel contends that without Ms. Apa's testimony or a complete affidavit describing the reasoning for the non-existence of the audiotape and/or transcript of the phone call, plaintiff is unable to support her own rendition of the accident without her prior statements, plaintiff is unable to impeach the defendant or refresh his memory of the accident [*2]without his own statements as given to the claims representative, plaintiff is left with a high probability of surprise or prejudice at trial, and plaintiff is unable to properly and fully move for preclusion, a negative jury instruction, or discovery sanctions on the grounds of spoliation.

CPLR § 3101 (a) provides that there shall be "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by (1) a party. . . or (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required." 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]). In moving to quash, the movant must establish either that the discovery sought is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious (see Ferolito v Arizona Beverages USA, LLC, 119 AD3d 642 [2d Dept. 2014]).

This Court finds that defendant's motion and Ms. Apa's application to quash the subpoena pursuant to CPLR 2304 and 3103 is granted. Contrary to the plaintiff's contention, further discovery with respect to the nonparty is inappropriate herein and not "material and necessary" in the prosecution of this action. "[M]ore than mere relevance and materiality is necessary to warrant disclosure from a nonparty" (Kooper v Kooper, 74 AD3d 6 [2d Dept. 2010]. Further, "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 involvement" (Id.)

Here, plaintiff already deposed defendant and is in possession of the affidavit of Ms. Apa affirming that there is no audiotape or transcript of the phone call made on the day of the subject accident. Moreover, the deposition of both parties is sufficient to present before a trier of fact to demonstrate how the accident occurred. The information sought from Ms. Apa at a deposition would be cumulative of information previously provided by the parties, and rather than being material and necessary, is sought merely to impeach defendant's credibility and/or bolster 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). Moreover, as the purpose of liability insurance is the defense and settlement of claims, there is little or nothing the insurer or employees do with respect to an accident report except in contemplation and preparation for [*3]eventual litigation or for a settlement (see Kandel v Tocher, 22 AD2d 513 [1965]). As such, the information plaintiff is seeking was made in anticipation of litigation and may be obtained only upon a showing that plaintiff has a substantial need of the materials and is unable without undue hardship to obtain the substantial equivalent of the materials by other means (see CPLR 3101[d][2]). Here, this Court finds that 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 matter or that plaintiff has a substantial need for Ms. Apa's testimony (see Dicenso v Wallin, 109 AD3d 508 [2d Dept. 2013]).

Regarding plaintiff's cross-motion, this Court finds that defendant has complied with all discovery requests in that defendant provided the affidavit of Ms. Apa, "a person with knowledge of said transcript or tape." Thus, plaintiff has failed to demonstrate that defendant has engaged in any willful or contumacious conduct.

Accordingly, for the above stated reasons, it is hereby,

ORDERED, that defendant's motion (seq. no. 3) and non-party Gina Apa's application (seq. no. 4) for a protective order pursuant to CPLR 2304 and 3103, quashing the subpoenas with notices to take deposition of nonparty Gina Apa are granted; and it is further

ORDERED, that plaintiff's cross-motion (seq. no. 4) is denied in its entirety.

Dated: September 21, 2016

Long Island City, NY

ROBERT J. MCDONALD

J.S.C.