Cicero v West Babylon Union Free Sch. Dist.

[*1] Cicero v West Babylon Union Free Sch. Dist. 2018 NY Slip Op 50706(U) Decided on May 14, 2018 Supreme Court, Suffolk County Mayer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2018
Supreme Court, Suffolk County

Rebecca Cicero a/p/n/g of JC, an infant under the age of eighteen (18), and Rebecca Cicero, Individually, Plaintiff(s),

against

West Babylon Union Free School District and Robert Dahl, Defendant(s).



603913-2016



For Plaintiff:
Robert T. Acker, P.C.
390 North Broadway, Suite 200
Jericho, New York 11753

Attorneys for Defendants West Babylon UFSD and Dahl:
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Esqs.
333 Earle Ovington Boulevard, Suite 502
Uniondale, New York 11553-3625
Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated October 16, 2017, and supporting papers; (2) Affirmation in Opposition by the defendants, dated November 6, 2017, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that plaintiffs' motion (seq. #001), which seeks an order pursuant to CPLR 3101 compelling defendants to produce additional witnesses for deposition, is hereby denied; and it is further

ORDERED that defendants' counsel shall promptly serve a copy of this Order upon counsel for the plaintiffs, and shall promptly thereafter file the affidavit of such service with the Suffolk County Clerk.

In this action, plaintiffs allege that the infant plaintiff, JC, sustained injuries to his left ankle while participating in pole vaulting activities in his physical education class at the West Babylon Junior High School. Plaintiffs further allege that during a later class, while JC was in a cast and using crutches, he was required to attend, although not participate, in a physical education class outside. While outside, one of his crutches hit a ditch or hole, causing him to fall and further injure his ankle. The physical education teacher, Robert Dahl, was deposed and testified about the pole vaulting activities and JC's incident, as well as about the approval process for the lesson plans and procedures for students who are medically excused from physical education class participation. Plaintiffs' counsel, however, seeks an order granting additional depositions, for example, of the school's athletic director and principal.

In general, CPLR §3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . ." Pursuant to CPLR §3103(a), "[t]he court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device." The statute makes clear that when the court issues any such order in its discretion, it "shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103[a]; see also Youngquist v Youngquist, 44 AD3d 1034, 845 NYS2d 787 [2d Dept 2007]; Byck v Byck, 294 AD2d 456, 743 NYS2d 126 [2d Dept 2002]; Eber Bros. Wine & Liq. Corp. v Ribowsky, 266 AD2d 499, 698 NYS2d 725 [2d Dept 1999]).

While CPLR §3101(a) provides for full disclosure of all evidence material and necessary to the prosecution or defense of an action, unlimited disclosure is not required, and supervision of disclosure is generally left to the broad discretion of the trial court (see Karanikolas v Elias Taverna, LLC, 128 AD3d 905, 10 NYS3d 141 [2d Dept 2015]; Conte v County of Nassau, 87 AD3d 558, 929 NYS2d 741 [2d Dept 2011]; Constantino v Dock's Clam Bar & Pasta House, 60 AD3d 612, 873 NYS2d 497 [2d Dept 2009]; Youngquist v Youngquist, 44 AD3d 1034, 845 NYS2d 787 [2d Dept 2007]; Auerbach v Klein, 30 AD3d 451, 816 NYS2d 376 [2d Dept 2006]). As set forth in the statute, this broad discretion is intended to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice" (CPLR 3103[a]; see Youngquist v Youngquist, 44 AD3d 1034, 845 NYS2d 787 [2d Dept 2007]; Byck v Byck, 294 AD2d 456, 743 NYS2d 126 [2d Dept 2002]; Eber Bros. Wine & Liq. Corp. v Ribowsky, 266 AD2d 499, 698 NYS2d 725 [2d Dept 1999]).

In exercising its broad discretion in the supervision of discovery, the supreme court's determinations should not be disturbed on appeal unless improvidently made (see U.S. Pioneer Elecs. Corp. v Nikko Elec. Corp. of Amer., 47 NY2d 914, 419 NYS2d 484 [1979]; Vanacore v Electrolux Home Products, Inc., 124 AD3d 874, 998 NYS2d 911 [2d Dept 2015]; Constantino v Dock's Clam Bar & Pasta House, 60 AD3d 612, 873 NYS2d 497 [2d Dept 2009] Pacheco v New York City Hous. Auth., 48 AD3d 534, 849 NYS2d 904 [2d Dept 2008]; Gillen v Utica First Ins. Co., 41 AD3d 647, 839 NYS2d 155 [2d Dept 2007]; Mattocks v White Motor Corp., 258 [*2]AD2d 628, 685 NYS2d 764 [2d Dept 1999]). The court providently exercises its discretion in denying additional discovery where it concludes that the additional discovery sought is neither material nor necessary (see CPLR 3101[a]; Youngquist v Youngquist, 44 AD3d 1034, 845 NYS2d 787 [2d Dept 2007]; Auerbach v Klein, 30 AD3d 451, 816 NYS2d 376 [2d Dept 2006]).

For the purpose of depositions, a corporate or municipal entity has the right to designate, in the first instance, the witness who will be examined (see Cea v Zimmerman, 142 AD3d 941, 38 NYS3d 205 [2d Dept 2016]; Walker v City of New York, 140 AD3d 739, 30 NYS3d 908 [2d Dept 2016]; Conte v County of Nassau, 87 AD3d 559, 929 NYS2d 742 [2d Dept 2011]; Giordano v New Rochelle Mun. Hous. Auth., 84 AD3d 729, 922 NYS2d 518 [2d Dept 2011]; Thristino v County of Suffolk, 78 AD3d 927, 910 NYS2d 664 [2d Dept 2010]). When a party seeks an order granting additional depositions, that party must show that additional depositions are necessary by demonstrating (1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) that there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case (see O'Brien v Village of Babylon, 153 AD3d 547, 60 NYS3d 92 [2d Dept 2017]; Spohn-Konen v Town of Brookhaven, 74 AD3d 1049, 902 NYS2d 391 [2d Dept 2010]; Nazario v City of New York, 27 AD3d 439, 810 NYS2d 342 [2d Dept 2006]). The burden is upon the examining party to make a showing as to both factors (see Walker v City of New York, 140 AD3d 739, 30 NYS3d 908 [2d Dept 2016]; Bentze v Island Trees Union Free School Dist., 92 AD3d 709, 938 NYS2d 464 [2d Dept 2012]; Sladowski—Casolaro v World Championship Wrestling, Inc., 47 AD3d 803, 850 NYS2d 176 [2d Dept 2008]).

Here, the plaintiffs have failed to show that Mr. Dahl had insufficient knowledge or was otherwise inadequate as a witness, and that there is a substantial likelihood that the additional witnesses plaintiffs wish to depose possess information which is material and necessary to the prosecution of the action. Such failure requires denial of plaintiffs' motion to compel additional depositions (see Walker v City of New York, 140 AD3d 739, 30 NYS3d 908 [2d Dept 2016]; Saxe v City of New York, 250 AD2d 751, 671 NYS2d 1002 [2d Dept 1998]; Carter v New York City Bd. of Educ., 225 AD2d 512, 638 NYS2d 770 [2d Dept 1996]).

This constitutes the Decision and Order of the Court.

Dated: May 14, 2018
PETER H. MAYER, J.S.C.