Greenstone Group FZC v Mack Real Estate Credit Strategies, L.P.
Annotate this CaseDecided on July 16, 2021
Supreme Court, New York County
Greenstone Group FZC, Plaintiff,
against
Mack Real Estate Credit Strategies, L.P. and CLAROS MORTGAGE TRUST, INC., Defendants.
Index No. 652127/2017
Archer & Greiner, P.C., New York, NY (Anthony D. Dougherty and Bruce M. Gorman, Jr. of counsel), for plaintiff.
Amini LLC, New York, NY (Noam Besdin of counsel), for defendants.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99 were read on this motion to COMPEL.
Upon the foregoing documents, it is ordered that plaintiff's motion is granted in part and denied in part.[FN1] A prior conference order in this action set a deadline for completing party depositions and directed the parties to meet and confer on a deposition schedule for party witnesses. (See NYSCEF No. 88.) Consistent with that order, defendants agreed to produce a witness for deposition. Plaintiff believes that other individuals affiliated with defendants are likely more knowledgeable than defendants' proffered witness about the transactions among the parties that are at issue in the action. Plaintiff therefore moves to compel defendants to produce [*2]those witnesses for deposition instead.
The CPLR affords parties the choice in the first instance about whom they will produce for deposition. (See CPLR 3106 [d].) The party seeking discovery may compel the deposition of an additional witness or witnesses only upon a detailed showing "that the employees already deposed had insufficient information and there was a substantial likelihood that those sought to be deposed possess information necessary and material to the prosecution of the case." (Alexopoulos v Metropolitan Transit Auth., 37 AD3d 232, 233 [1st Dept 2007].) Plaintiff has not shown definitively that defendants' proffered witness will lack personal knowledge of the subjects on which plaintiff intends to question him. At most, plaintiff has raised the possibility that this witness will not have direct, first-hand knowledge of those subjects. That possibility, standing alone, does not warrant this court ordering defendants to produce additional witnesses in advance of any deposition.
The branch of plaintiff's motion seeking at this time to compel the deposition of two individuals beyond the witness offered by defendants is denied. The denial of this request is without prejudice to its later renewal in light of the answers given and the information provided (or not provided) during the initial deposition.
With respect to the timing of that initial deposition, this court's prior conference order—entered in April 2021 without objection from defendants—directed that party depositions be completed by August 31, 2021. (See NYSCEF No. 88 at 1.) Shortly after entry of that order, defendants proposed instead that the deposition of their witness occur in late September 2021, rather than by August 31. Defendants' counsel's explanation for this shift is that on conferring with their client, they learned that their witness would have only limited availability in August, and that it would be most convenient to schedule the deposition to follow the Jewish High Holidays (which fall this year in early September). Be that as it may, defendants have not represented that it is impossible for their witness to appear for deposition by August 31; nor fully explained why defendants' counsel did not learn of their witness's availability until after the court had entered a deposition-scheduling order. This court is disinclined, in these circumstances, to alter the terms of its April 30, 2021, conference order.
The branch of plaintiff's motion seeking to compel the deposition of a witness for defendants by the original August 31, 2021, deadline is granted. The parties are directed to meet and confer on a mutually agreeable date for that deposition to occur.
DATE 7/16/2021 Footnotes
Footnote 1:Defendants have not yet filed their opposition papers. This court concludes, however, that plaintiff's moving papers, and several supplemental emails relating to this motion that the parties submitted to the court on request, provide a sufficient basis to resolve the motion without reference to any opposition papers that defendants might file.
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