You are here: / / AFTER PLAINTIFF’S POST-NOTE DEPOSITION SUBPOENA FOR THE NONPARTY...
,

AFTER PLAINTIFF’S POST-NOTE DEPOSITION SUBPOENA FOR THE NONPARTY WITNESS WAS QUASHED, PLAINTIFF OBTAINED A VOLUNTARY STATEMENT FROM THE NONPARTY WITNESS; OBTAINING THE STATEMENT WAS A PROPER METHOD OF “INFORMAL DISCOVERY” (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff properly conducted “informal discovery” by obtaining a voluntary statement from a nonparty witness after plaintiff’s post-note deposition subpoena for the witness was quashed:

Supreme Court granted defendant’s motion to quash the untimely, post-note deposition subpoena plaintiff served on nonparty witness Harris-Aikens, and to preclude plaintiff from “examining or otherwise taking any sworn testimony from” Harris-Aikens (the December Order), and suspended disclosure pursuant to CPLR 3103(b). …

… [T]he Harris-Aikens witness statement did not constitute “disclosure of the particular matter in dispute” prohibited by CPLR 3103(b). The statement was not an examination or other sworn testimony explicitly prohibited by the December Order, and was not otherwise an enumerated “disclosure device” under CPLR 3102(a) … . Rather, obtaining the witness statement was plaintiff’s proper exercise of ex parte, informal discovery, which the Court of Appeals has long recognized as a permissible and invaluable avenue by which litigants prepare for trial … . Everett v Equinox Holdings, Inc., 2024 NY Slip Op 02276, First Dept 4-30-24

Practice Point: Obtaining a voluntary statement from a nonparty witness here did not violate the court order quashing a deposition subpoena for the same witness. The voluntary statement was a proper form of “informal discovery.”

 

You might also like
Notice of Voluntary Discontinuance Filed After Opponents’ Motions to Dismiss Is Untimely
COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVISION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS.
CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).
FACT THAT OBJECT OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS DID NOT RELIEVE DEFENDANT OF LIABILITY AS A MATTER OF LAW.
THE BUILDING OWNER HAD, BY CONTRACT, RELINQUISHED ALL RESPONSIBILITY FOR ELEVATOR MAINTENANCE TO DEFENDANT AMERICAN ELEVATOR AND WAS THEREFORE NOT LIABLE FOR THE ALLEGED ELEVATOR MALFUNCTION; THE PLAINTIFF ALLEGED THE INNER GATE CLOSED ON HER SHOULDER, PINNING HER, AND THE ELEVATOR THEN DESCENDED; A QUESTION OF FACT PURSUANT TO THE RES IPSA LOQUITUR DOCTRINE WAS RAISED (FIRST DEPT). ​
DEFENDANT WAS REPEATEDLY WARNED HE COULD BE SENTENCED TO 45 YEARS AFTER TRIAL WHEN, IN FACT, HIS SENTENCE WOULD BE CAPPED AT 20 YEARS; DEFENDANT WAS NOT AWARE OF THIS GROUND FOR AN ATTACK ON HIS SENTENCE AND THEREFORE DID NOT NEED TO PRESERVE THE ISSUE FOR APPEAL BY MOVING TO WITHDRAW THE PLEA; PLEA VACATED (FIRST DEPT).
EVIDENCE THAT DEFENDANT SEX OFFENDER SUFFERS FROM UNSPECIFIED PARAPHILIC DISORDER (USPD) MAY BE ADMISSIBLE IN AN ARTICLE 10 TRIAL, THE EVIDENCE WAS EXCLUDED BELOW, VERDICT VACATED AND PETITION REINSTATED (FIRST DEPT).
DEFENDANT BUILDING OWNER AND MANAGER WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM-IN-PROGRESS DOCTRINE, 18 INCHES OF SNOW HAD FALLEN LESS THAN TWO HOURS BEFORE; PLAINTIFF SLIPPED AND FELL ON WATER ON STAIRS IN THE LOBBY; PLAINTIFF’S OWN TESTIMONY DEMONSTRATED DEFENDANTS DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THERE WAS NO RECORD DEFENSE COUNSEL WAS INFORMED OF THE JURY NOTE AND NO RECORD... THE NEARLY $10 MILLION VERDICT IN THIS MEDICAL MALPRACTICE ACTION WAS SUPPORTED...