Opinion
2021-00937 2021-01612 202102802 Index 158747/16
04-28-2022
Manuele Verdi etc., Plaintiff-Appellant, v. Jeffrey Dinowitz etc., Defendant-Respondent. Randi Martos et al., Nonparty Respondents. Appeal No. 15839-15840-15840A
Ezra B. Glaser & Associates, Brooklyn (Ezra B. Glaser of counsel), for appellant. Stroock & Stroock & Lavan LLP, New York (Charles G. Moerdler of counsel), for respondents.
Ezra B. Glaser & Associates, Brooklyn (Ezra B. Glaser of counsel), for appellant.
Stroock & Stroock & Lavan LLP, New York (Charles G. Moerdler of counsel), for respondents.
Before: Acosta, P.J., Manzanet-Daniels, Mazzarelli, Singh, JJ.
Orders, Supreme Court, New York County (Lynn R. Kotler, J.), entered February 22, 2021, April 16, 2021, and July 22, 2021, which, to the extent appealed from, respectively, denied plaintiff's motion for leave to file a third amended complaint, denied plaintiff's motion to compel nonparty witnesses to comply with subpoenas, and denied plaintiff's renewed motions for the nonparty discovery and granted defendant's motion to quash subpoenas served on his counsel, unanimously affirmed, without costs.
The court providently exercised its discretion in denying plaintiff's motion for leave to amend the second amended complaint to allege a demand for punitive damages in connection with the defamation causes of action (see Consolidated Edison Co. of N.Y. v General Acc. Ins. Co., 204 A.D.2d 164, 165 [1st Dept 1994]). The proposed amendments were palpably insufficient and patently devoid of merit (LDIR, LLC v DB Structured Prods., Inc., 172 A.D.3d 1, 4 [1st Dept 2019]; see CPLR 3025[b]).
The pleadings allege that the defamatory statements were made with political and racial motivations, as well as a desire to shift blame, rather than, as required for punitive damages in a defamation claim, that defendant was motivated solely by malice (Morsette v The "Final Call", 309 A.D.2d 249, 255 [1st Dept 2003], appeal dismissed 5 N.Y.3d 756 [2005]). As we rejected plaintiff's prior attempt to plead damages on the same ground (see Verdi v Dinowitz, 188 A.D.3d 441, 442 [1st Dept 2020]), and his additional conclusory allegations that malice was the sole motivating factor does not substantively alter his demand for punitive damages, the proposed amendment is barred by law of the case (see Project Cricket Acquisition, Inc. v Florida Capital Partners, Inc., 180 A.D.3d 627, 627 [1st Dept 2020]; Community Energy Alternatives v Peatco II, 243 A.D.2d 371, 371 [1st Dept 1997]). In addition, defendant would be prejudiced by the amendment at this late stage of this already prolonged litigation.
The court's April 16, 2021 order properly denied plaintiff's motion to compel nonparties to comply with subpoenas, based on procedural grounds. In the July 22, 2021 order, the court properly denied plaintiff's renewed motion to compel nonparty Randi Martos to comply with a so-ordered subpoena served on January 9, 2021, after the court's deadline for discovery-related motions. Plaintiff failed to provide good cause for his delay in seeking the discovery and moving to compel. The fact that the subpoena was so-ordered did not obviate the need to explain the reason for the delay.
The court also properly denied plaintiff's renewed motion to compel nonparty Laura Moukas to comply with a previously served subpoena. Even assuming that Moukas was properly served, plaintiff waived his request to call her for a third day of deposition, and he failed to state what, if any, further documents were needed from her, as she produced documents on two prior occasions.
The court properly granted defendant's motion to quash the subpoenas served on three of his counsel. The information sought was irrelevant or available from other sources, including numerous nonparty witnesses who had been deposed and had provided documents (see Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 A.D.3d 401, 403-404 [1st Dept 2018]).