Jason Breska, Plaintiff, v. YM YWHA UJA OF GREATER NEW YORK INC UJA FEDERATION OF NEW YORK UNITED JEWISH APPEAL FEDERATION OF JEWISH PHILANTRHOPIES OF NEW YORK INC JEWISH COMMUNITY CENTERS ASSOCATION OF NORTH AMERICA JCC ASSOCIATION AND FLORENCE HELLER JCC ASSOCIATION RESEARCH CENTER INC (2022)

The following NYSCEF Document Numbers 75-88, 101, 105-108 read on the motion to quash and for a protective order

Hon. Alexander M. Tisch, J.S.C.

Upon the foregoing papers, defendants SHOREFRONT YM-YWHA OF BRIGHTON-MANHATTAN BEACH, INC.; UJA OF GREATER NEW YORK, INC., UJA-FEDERATION OF NEW YORK; UNITED JEWISH APPEAL-FEDERATION OF JEWISH PHILANTRHOPIES OF NEW YORK, INC. move to quash plaintiff's notice to take the non-party deposition of Eric Eisenberg and for a protective order preserving defendants' priority of depositions. After conference with the Court on 10/13/2022 and 11/9/2022, and additional briefing, the motion is denied as set forth herein.

CPLR 3101 states that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." "The words 'material and necessary' as used in [CPLR] 3101 must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (JFK Family Ltd. Partnership v Millbrae Nat. Gas Dev. Fund 2005, L.P., 132 AD3d 731, 733 [2d Dept 2015], quoting Matter of Kapon v Koch, 23 NY3d 32, 38 [2014] [internal quotations omitted]). "The test is one of usefulness and reason" (Forman v Henkin, 30 NY3d 656, 661 [2018], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Here, the Court finds that the relevancy and materiality of the witness's testimony is not seriously disputed.

Rather, in support of their motion, defendants argue that they maintain priority of depositions. This may be true as between parties but "[t]here is no stated priority for deposing a nonparty in CPLR 3106(a)" (Patrick M. Conners, Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, C3106:1).¹ Thus, there is nothing within the CPLR imposing a priority of deposition that is not mandated within existing procedural rules.

Defendants also argue that there is no competent evidence that the witness would not be unavailable after the motions are decided and after initial discovery is exchanged. In light of this argument, the Court directed the parties to supplement their papers regarding Mr. Eisenberg's health during the 10/13/2022 status conference. The evidence reveals that Mr. Eisenberg has encountered serious cardiac issues, which required hospitalization and a surgery in April and May earlier this year. However, the Court's decision need not rely on CPLR 3101 (a) (3), concerning any person who is "so sick or infirm as to afford reasonable grounds of belief that he or she will not be able to attend the trial" because subdivision (4) of the same section already permits discovery from a nonparty "upon notice stating the circumstances or reasons such disclosure is sought or required." Therefore, Mr. Eisenberg's health is only a factor in the Court's consideration in addressing that branch of the motion for a protective order.

Further, although defendants argue that preserving Mr. Eisenberg's testimony (as opposed to discovering information from the deposition) requires plaintiff to show that "the party to be deposed is unable to testify because of his age or health" (NYSCEF Doc No 101 at ¶¶ 14-16, quoting In re New York City Asbestos Litig., 2010 NY Slip Op 33214[U] [Sup Ct, New York County 2010]),² the Appellate Division, Fourth Department once stated that it "discern[s] no distinction between trial testimony and pretrial videotaped deposition testimony presented at trial" (Thompson v Mather, 70 AD3d 1436, 1438 [4th Dept 2010]). Consequently, the Court finds, as set forth supra, that it need not rely on 3101(a)(3) as to whether the Court must consider Mr. Eisenberg's health as the sole reasoning for permitting the deposition to proceed.

CPLR 3103 provides that the Court may issue a protective order as follows:

(a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.

In this regard, the Court finds it appropriate to address the defendants' claims of prejudice. Specifically, defendants claim they are prejudiced by not having plaintiff's depositions or other discovery before deposing Mr. Eisenberg and would be essentially proceeding in this deposition blind. Plaintiffs claimed they would be prejudiced if this witness is not deposed as soon as possible if his health fails. The Court finds that defendants would not necessarily be going in blind given the nature of the testimony anticipated by the parties. However, the Court will exercise its discretion to grant the application for a protective order solely to the extent that plaintiffs will be directed to provide certain automatic disclosures before conducting his deposition. Additionally, even though Mr. Eisenberg will appear voluntarily, the Court will direct that the party be subpoenaed because a subpoena is explicitly required by CPLR 3106 (b). The Court finds the defendants' remaining arguments on prejudice unavailing, including whether the witness was employed by an entity that no longer exists — the Court is confident that that the parties will question the witness as to his employment and/or relationship with the defendants and plaintiffs, and the testimony will be whatever it may be — but the legal conclusions drawn from such testimony are not presently before the Court.

Accordingly, it is hereby ORDERED that the branch of the motion for a protective order is granted solely to the extent that plaintiff shall subpoena Mr. Eisenberg for his nonparty deposition and that such deposition shall take place after plaintiffs serve their standard automatic disclosures and verified bill of particulars but no later than 1/31/2023; and it is further

ORDERED that the remainder of the motion is denied. This constitutes the decision and order of the Court.

11/16/2022

FOOTNOTES

1.   Defendants also argue discovery is stayed because of pending motions to dismiss. That is no longer an issue as the Court heard oral argument on said motions on 9/22/2022 and denied the motions on the record.

2.   Although NYSCEF Doc No. 101 is referenced in this Breska matter (index number 514202/2020), the document numbers may be different in the related index numbers, all of which will have the same decision and order issued on the appropriate motion sequence number.

Alexander M. Tisch, J.