HILICKI v. Joseph Fillipone, Defendant. (2000)

Supreme Court, Appellate Division, First Department, New York.

Mary Chris HILICKI, Plaintiff-Respondent, v. HOTEL NIKKO OF NEW YORK, INC., etc., Defendant-Appellant, Joseph Fillipone, Defendant.

Decided: October 24, 2000

SULLIVAN, P.J., NARDELLI, RUBIN, SAXE and FRIEDMAN, JJ.

Thomas L. Friedman, for Plaintiff-Respondent. Kevin Faley, for Defendant-Appellant.

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered December 14, 1999, which, inter alia, denied defendant-appellant's motion for the issuance of an open commission to take the depositions without the State of two nonparty witnesses, unanimously affirmed, without costs.

The motion for an open commission was properly denied considering that it was made only two days prior to the discovery cut-off date, although appellant became aware of the purported need for the testimony of the out-of-State witnesses no later than two months earlier (see, Red Apple Supermarkets v. Malone & Hyde, 251 A.D.2d 78, 673 N.Y.S.2d 672). Moreover, the relevance of the testimony sought is not apparent.

MEMORANDUM DECISION.

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