Opinion
2014-01-8
Diki Elias ESPINOZA, respondent, v. CITY OF NEW YORK, et al., appellants.
Jeffrey D. Friedlander, Acting Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Shannon Colabrese of counsel), for appellants. Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.
Jeffrey D. Friedlander, Acting Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Shannon Colabrese of counsel), for appellants. Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Ash, J.), dated November 5, 2012, which granted that branch of the plaintiff's motion which was to compel the defendants to produce an additional witness for a deposition.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and that branch of the plaintiff's motion which was to compel the defendants to produce an additional witness for a deposition is denied.
A municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for a deposition ( see Douglas v. New York City Tr. Auth., 48 A.D.3d 615, 616, 852 N.Y.S.2d 368; Simpson v. City of New York, 10 A.D.3d 601, 603, 781 N.Y.S.2d 683; Pomilio–Young v. City of New York, 7 A.D.3d 600, 775 N.Y.S.2d 906). A plaintiff may demand the production of additional witnesses upon a showing that (1) the representative already deposed had insufficient knowledge or was otherwise inadequate, and (2) there is a substantial likelihood that the person sought for deposition possesses information which is material and necessary to the prosecution of the case ( see Seattle Pac. Indus., Inc. v. Golden Val. Realty Assoc., 54 A.D.3d 930, 933, 864 N.Y.S.2d 500; Douglas v. New York City Tr. Auth., 48 A.D.3d at 616, 852 N.Y.S.2d 368; Del Rosa v. City of New York, 304 A.D.2d 786, 757 N.Y.S.2d 805).
Here, the plaintiff deposed the defendant Edward M. Rosovich, a police officer and employee of the municipal defendants who was involved in the subject accident. The plaintiff failed to demonstrate that the individual defendant had insufficient knowledge of the facts or was otherwise inadequate ( see Douglas v. New York City Tr. Auth., 48 A.D.3d at 616, 852 N.Y.S.2d 368; cf. Zollner v. City of New York, 204 A.D.2d 626, 627, 612 N.Y.S.2d 627). Moreover, even if the witness proposed by the plaintiff possesses additional information regarding his investigation, conclusions, and recommendation, the plaintiff has not shown that such evidence is discoverable under the circumstances of this case ( see Pisano v. Door Control, 268 A.D.2d 416, 417, 702 N.Y.S.2d 307; Bischoff v. City of New York, N.Y.L.J., June 12, 2007 at 23, col. 1 [Sup.Ct., Kings County 2007] ). SKELOS, J.P., DICKERSON, LOTT and AUSTIN, JJ., concur.