CAVARETTA v. Aldo Biasatti and Gloria Biasatti, Respondents. (2000)

 Steven J. Smith and Debra Smith (defendants) appeal from an order of Supreme Court denying their motion for the issuance of letters rogatory to conduct depositions upon written questions of three witnesses.   Defendants established that those witnesses may have evidence “material and necessary” in the defense of the action (CPLR 3101[a];  see, Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 407-408, 288 N.Y.S.2d 449, 235 N.E.2d 430;  Wiseman v. American Motors Sales Corp., 103 A.D.2d 230, 239, 479 N.Y.S.2d 528).   The fact that defendants supported their motion by hearsay evidence does not preclude the relief sought (see, Wiseman v. American Motors Sales Corp., supra, at 236-237, 479 N.Y.S.2d 528).   The mere showing by an attorney that a nonparty witness's pretrial deposition is required to prepare fully for trial suffices as a “special circumstance” for purposes of applying the liberal discovery policy of the CPLR (see, Kenford Co. v. County of Erie, 41 A.D.2d 586, 340 N.Y.S.2d 300).

While the notice of motion refers both to the Province of Ontario and the State of Michigan, counsel's affidavit in support of the motion seeks the issuance of letters rogatory for the depositions only in Ontario.   Therefore, we reverse the order and grant the motion seeking the issuance of letters rogatory to conduct depositions upon written questions in the Province of Ontario, Canada.

Order unanimously reversed on the law without costs and motion granted.

MEMORANDUM: