MILLER v. [And A Third-Party Action]. (2008)

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered November 13, 2007, which denied defendants-appellants' motion pursuant to CPLR 3108 for an open commission to conduct a post-note of issue deposition of an out-of-state nonparty witness, unanimously affirmed, without costs.

The court exercised its discretion in a provident manner in denying appellants' motion, where appellants failed to demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue that would warrant such relief (see 22 NYCRR 202.21[d];  Karr v. Brant Lake Camp, 265 A.D.2d 184, 696 N.Y.S.2d 140 [1999] ).   The record establishes that appellants were aware of the nonparty witness several years prior to the filing of the note of issue, yet made a strategic decision not to seek his deposition after he was interviewed by their investigator.   Appellants never moved to vacate the note of issue, and the instant motion was brought 10 months after the note of issue was filed and 5 months after appellants discovered the purported discrepancy between the witness's statements to their investigator and those he subsequently made in an affidavit that was submitted in support of plaintiffs' opposition to summary judgment motions.