PALMIERO v. [And a Third Party Action] (2018)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered January 26, 2018, which denied defendants 417 East 9th Street Associates, LLC, Jakobson Properties, LLC, Peter Jakobson and Peter Jakobson, Jr.'s motion to vacate the note of issue and granted plaintiff's motion to quash a nonparty subpoena, unanimously affirmed, without costs.

Defendants failed to establish that unusual or unanticipated circumstances developed after the note of issue was filed that require additional discovery to prevent substantial prejudice to them (see 22 NYCRR 202.21[d] ).  Plaintiff has not converted this action into a wrongful death action, claimed any new or additional injuries, or served a supplemental bill of particulars (see Nikqi v. Dedona Contr. Corp., 117 A.D.3d 620, 986 N.Y.S.2d 123 [1st Dept. 2014];  Schroeder v. IESI N.Y. Corp., 24 A.D.3d 180, 805 N.Y.S.2d 79 [1st Dept. 2005] ).

The court properly granted plaintiff's motion to quash the nonparty subpoena, which sought to obtain an unredacted copy of the death certificate (see Budano v. Gurdon, 97 A.D.3d 497, 499, 948 N.Y.S.2d 612 [1st Dept. 2012];  see also Ciancio v. Woodlawn Cemetery Assn., 210 A.D.2d 9, 618 N.Y.S.2d 816 [1st Dept. 1994] ).  The cause of the decedent's death has not been placed at issue by the filing of a wrongful death claim or allegations of new or additional injuries.  Moreover, defendants do not deny that they received the decedent's entire medical file, deposed him twice, and conducted medical examinations of him, and they have not shown that the death certificate is material and necessary in the defense of this action (compare Capati v. Crunch Fitness Intl., 295 A.D.2d 181, 743 N.Y.S.2d 474 [1st Dept. 2002] [where no autopsy performed and cause of death not established by medical records or death certificate, subpoenas for depositions of nonparty treating physicians should not have been quashed] ).