ASPROU v. HELLENIC ORTHODOX COMMUNITY OF ASTORIA

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

Paris ASPROU, appellant, v. HELLENIC ORTHODOX COMMUNITY OF ASTORIA, et al., respondents.

2018–12066

Decided: July 08, 2020

CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, PAUL WOOTEN, JJ. Sacco & Fillas, LLP, Astoria, N.Y. (James R. Baez of counsel), for appellant. Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (William L. Schleifer, Gary Petropoulos, and Ian L. Glick of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), dated September 20, 2018.  The order, insofar as appealed from, denied those branches of the plaintiff's motion which were to compel the defendants to produce two additional witnesses for depositions and to respond to the plaintiff's supplemental combined discovery demands.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On January 12, 2016, the plaintiff allegedly was injured when he slipped and fell on water leaking from the roof while playing basketball in the gymnasium of the defendant Saint Demetrios Astoria School (hereinafter the school).  In April 2016, the plaintiff commenced this action against the school and the defendant Hellenic Orthodox Community of Astoria (hereinafter the church) to recover damages for personal injuries he allegedly sustained as a result of the accident.  The church owns the building where the plaintiff's accident occurred.  In May 2016, the defendants joined issue by interposing an answer.

The plaintiff was produced for a deposition on February 5, 2018.  The defendants appeared for a deposition on April 20, 2018, by producing the chief school administrator superintendent of the school.  On June 14, 2018, the plaintiff deposed a nonparty.  On June 15, 2018, the plaintiff sent a letter to the defendants requesting that they produce two additional named witnesses for depositions.  The plaintiff also served supplemental combined discovery demands dated June 18, 2018.  By notice of motion dated August 20, 2018, the plaintiff moved, inter alia, to compel the defendants to produce the two additional named witnesses for depositions and to respond to the plaintiff's supplemental combined discovery demands.  The defendants served a response to the plaintiff's supplemental combined discovery demands dated September 7, 2018, objecting to all demands, and opposed the plaintiff's motion.  In an order dated September 20, 2018, the Supreme Court, inter alia, denied those branches of the plaintiff's motion which were to compel.  The plaintiff appeals.

“ ‘The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the Supreme Court.  The Supreme Court's discretion is broad because it is familiar with the action before it, and its exercise should not be disturbed on appeal unless it was improvidently exercised’ ” (Encalada v. Riverside Retail, LLC, 175 A.D.3d 467, 469, 107 N.Y.S.3d 124, quoting Cabellero v. City of New York, 48 A.D.3d 727, 728, 853 N.Y.S.2d 165 [internal quotation marks omitted];  see Berkowitz v. 29 Woodmere Blvd. Owners', Inc., 135 A.D.3d 798, 799, 23 N.Y.S.3d 352;  Diaz v. City of New York, 117 A.D.3d 777, 777–778, 985 N.Y.S.2d 695;  Montalvo v. CVS Pharm., Inc., 102 A.D.3d 842, 843, 958 N.Y.S.2d 459).

For purposes of depositions, a corporate entity has the right to designate, in the first instance, the employee who shall be examined (see Conte v. County of Nassau, 87 A.D.3d 559, 560, 929 N.Y.S.2d 742;  Giordano v. New Rochelle Mun. Hous. Auth., 84 A.D.3d 729, 731, 922 N.Y.S.2d 518;  Nunez v. Chase Manhattan Bank, 71 A.D.3d 967, 968, 896 N.Y.S.2d 472).  A party “seeking additional depositions has the burden of demonstrating ‘(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case’ ” (Gomez v. State of New York, 106 A.D.3d 870, 872, 965 N.Y.S.2d 542, quoting Zollner v. City of New York, 204 A.D.2d 626, 627, 612 N.Y.S.2d 627;  see Conte v. County of Nassau, 87 A.D.3d at 560, 929 N.Y.S.2d 742;  Giordano v. New Rochelle Mun. Hous. Auth., 84 A.D.3d at 731, 922 N.Y.S.2d 518).

We agree with the Supreme Court's determination denying that branch of the plaintiff's motion which was to compel the defendants to produce the two additional named witnesses for depositions.  The plaintiff failed to demonstrate that the defendants' representative who had already been deposed had insufficient knowledge or was otherwise inadequate as a witness (see Walker v. City of New York, 140 A.D.3d 739, 30 N.Y.S.3d 908;  Thristino v. County of Suffolk, 78 A.D.3d 927, 910 N.Y.S.2d 664;  Douglas v. New York City Tr. Auth., 48 A.D.3d 615, 852 N.Y.S.2d 368).

We also agree with the Supreme Court's determination denying that branch of the plaintiff's motion which was to compel the defendants to respond to his supplemental combined discovery demands.  CPLR 3101(a) requires, in pertinent part, “full disclosure of all matter material and necessary in the prosecution or defense of an action.”  However, “[a] party is not entitled to unlimited, uncontrolled, unfettered disclosure” (Geffner v. Mercy Med. Ctr., 83 A.D.3d 998, 998, 922 N.Y.S.2d 470;  see Kiernan v. Booth Mem. Med. Ctr., 175 A.D.3d 1396, 1398, 109 N.Y.S.3d 139;  Jordan v. City of New York, 137 A.D.3d 1084, 27 N.Y.S.3d 656).

Disclosure demands may be palpably improper where they seek irrelevant information, are overbroad and burdensome, or fail to specify with reasonable particularity many of the documents demanded (see Kiernan v. Booth Mem. Med. Ctr., 175 A.D.3d at 1397–1398, 109 N.Y.S.3d 139;  Kayantas v. Restaurant Depot, LLC, 173 A.D.3d 718, 102 N.Y.S.3d 295).  “Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it” (Pascual v. Rustic Woods Homeowners Assn., Inc., 173 A.D.3d 757, 758, 104 N.Y.S.3d 110).  Here, the discovery demands at issue were abandoned or palpably improper in that they sought irrelevant information or were overbroad (see id. at 758, 104 N.Y.S.3d 110;  Shaw v. Bluepers Family Billiards, 94 A.D.3d 858, 860, 941 N.Y.S.2d 691;  Geffner v. Mercy Med. Ctr., 83 A.D.3d at 998, 922 N.Y.S.2d 470).

The parties' remaining contentions are without merit.

CHAMBERS, J.P., MALTESE, CHRISTOPHER and WOOTEN, JJ., concur.

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