KORAMBLYUM v. MEDVEDOVSKY (2005)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated February 10, 2005, which denied the motion of the defendants Mark Medvedovsky and Fanya Medvedovsky and the separate motion of the defendant Alex Medved pursuant to CPLR 2304 to quash a subpoena directing a nonparty witness to appear for a deposition and to produce certain documents at the deposition, and pursuant to CPLR 3103(a) for a protective order, inter alia, prohibiting the plaintiffs from introducing certain evidence at trial.

ORDERED that the order is affirmed, with costs.

The material sought to be excluded by a protective order was not privileged under CPLR 3101(d)(2) (see Bombard v. Amica Mut. Ins. Co., 11 A.D.3d 647, 648, 783 N.Y.S.2d 85;  Agovino v. Taco Bell 5083, 225 A.D.2d 569, 571, 639 N.Y.S.2d 111).   Moreover, assuming that such a privilege existed, it was waived by the defendants' lack of due diligence (see AFA Protective Sys. Inc. v. City of New York, 13 A.D.3d 564, 565, 788 N.Y.S.2d 128;  Bras v. Atlas Constr. Corp., 153 A.D.2d 914, 915, 545 N.Y.S.2d 723;  cf. Buxton v. Ruden, 12 A.D.3d 475, 784 N.Y.S.2d 619).

Furthermore, the Supreme Court providently exercised its discretion in declining to quash the subpoena issued to the nonparty Nick Calise.   The plaintiffs demonstrated that the disclosure sought was material and necessary (see CPLR 3101[a][4] ), and that the information was otherwise unobtainable (see Thorson v. New York City Tr. Auth., 305 A.D.2d 666, 666-667, 759 N.Y.S.2d 880;  Bostrom v. William Penn Life Ins. Co. of N.Y., 285 A.D.2d 482, 727 N.Y.S.2d 160).