AMENDED1 DECISION + The following e-filed documents, listed by NYSCEF document number (Motion 003) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 89, 90, 91, 92, 93, 94, 95, 96, 97, 119, 120 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS. AMENDED1 DECISION + ORDER ON MOTION Plaintiff commenced this action seeking damages for personal injuries suffered as a result of an alleged assault, battery, false arrest, and/or physical detention on June 25, 2020 at approximately 2:20 pm in the McDonald’s restaurant located at 354 West 125th Street, New York, NY 10027 (“Subject Premises”). On August 16, 2023, plaintiff filed a note of issue and certificate of readiness. On September 13, 2023, defendants Peter Fonseca and Petwil XVI, Inc., and Petwil XVII, Inc. (defendants) executed a subpoena for a non-party deposition of Oladdehinde Onalaja (Onalaja), and e-filed same. On September 20, 2023, plaintiff moved for a protective order pursuant to CPLR §§3101 and 2304, quashing the subject Judicial Subpoena dated September 20, 2023, striking the Defendants’ supplemental response for witnesses, and precluding the witnesses from testifying at the trial of this action; and pursuant to CPLR §3103 precluding the Defendants from taking the deposition of the previously undisclosed witness or offering testimony from this individual in any dispositive motion or from calling this individual at the trial of this action, or in the alternative, precluding this individual from testifying. (Mot. Seq. 3). On October 10, 2023, defendants cross-moved for an order pursuant to 22 NYCRR §202.21(d) permitting them to disclose and depose witnesses identified after the filing of a Note of Issue based on unanticipated circumstances. By decision and order dated November 17, 2023, the Court granted the motion to the extent of directing the parties to appear for a virtual conference on December 13, 2023. The conference was held, and no resolution was reached, necessitating the within amended order. Plaintiff contends that defendants lack a good faith basis for their failure to disclose the identity of Onalaja and another witness, Daniel Santana prior to the filing of the Note of Issue and note they have not moved to vacate same. He contends that Onalaja’s identity was known to defendants for the last three years, as Onalaja and was an employee of defaulting defendant Bestworth Security Services LLC (“Bestworth”). Defendants claim they were not previously aware of Onalaja’s identity, and only became aware after obtaining a police aided report (“police report”) of the incident on or about September 13, 2023. They claim that the City of New York had responded to their prior Freedom of Information Act request advising that they could not locate the report, and it was only after they retained a private investigator to visit One Police Plaza that they were able to locate it. They argue that this constitutes unusual or anticipated circumstances sufficient to merit post-Note of Issue discovery, and that plaintiff will suffer no prejudice. In response, plaintiff argues that the failure to obtain the police report earlier was not due to unanticipated circumstances, but to defendants’ lack of diligence, arguing that it was clear from discovery and depositions that the police were called following the underlying incident, and thus they should have anticipated that a police report existed despite the FOIA response over a year prior. Pursuant to CPLR §2304, a court may quash, modify or fix conditions related to a subpoena and such an application should be granted “only where the futility of the process to uncover anything legitimate is inevitable or obvious…or where the information sought is utterly irrelevant to any proper inquiry.” Kapon v. Koch, 23 NY3d 32, 38 (2014). Motions to quash under CPLR §2304 are often accompanied by motions for a protective order under CPLR §3103(a), which provides that a protective order may be issued to prevent “unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” In determining whether a protective order should be issued, the general preference for allowing discovery must be balanced against the objecting party’s prerogative to be free of unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. CPLR §3103(a); see, Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 1983). CPLR §3101(a) provides for the “full disclosure of all evidence material and necessary in the prosecution or defense of an action regardless of the burden of proof.” Pursuant to 22 NYCRR 202.21(d), the court may authorize additional discovery after the Note of Issue is filed “[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness” that would otherwise cause “substantial prejudice.” Schroeder v. IESI NY Corp., 24 AD3d 180, 181 (1st Dept 2005), quoting Audiovox Corp. v. Benyamini, 265 AD2d 135, 137 (2d Dept 2000). “A lack of diligence in seeking discovery does not constitute unusual or unanticipated circumstances warranting post-note of issue disclosure.” Tirado v. Miller, 75 AD3d 153 (2d Dept 2010); see Colon v. Yen Ru Jin, 45 AD3d 359 (1st Dept 2007). Here, defendants’ failure to obtain the police department is not due to a lack of diligence, and the discovery of the police report after the Note of Issue was filed, given prior assurances from the New York City Police Department that it could not be located, constitutes unusual or unanticipated circumstances sufficient to warrant post-Note of Issue discovery. Additionally, defendants have shown, and plaintiffs have failed to rebut, a lack of substantial prejudice in allowing such limited post-Note discovery, as the sought after discovery is clearly relevant there was a relatively short lapse of time following the filing of the Note of Issue. Accordingly, it is hereby: ORDERED, that plaintiff’s motion for a protective order and to quash defendant’s subpoena is denied; and it is further ORDERED, that defendants Peter Fonseca and Petwil XVI, Inc., and Petwil XVII, Inc.’s cross-motion for post-Note of Issue disclosure is granted; and it is further ORDERED, that the deposition of non-party witness Oladdehinde Onalaja is to be held within 45 days of this order, with any post-deposition demands to be served within 30 days of completion of the deposition; and it is further ORDERED, that to the extent that the parties seek to depose non-party witness Daniel Santana, the must serve a subpoena on him within 30 days of this order; and it is further ORDERED that counsel are directed to appear for a virtual discovery conference with the court via MS Teams on February 8, 2024; and it is further ORDERED that, within 20 days from entry of this order, defendants shall serve a copy of this order with notice of entry on the Clerk of the General Clerk’s Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website at the address www.nycourts.gov/supctmanh);]; and it is further ORDERED that any relief not expressly addressed has nonetheless been considered and is hereby denied; and it is further This constitutes the decision and order of this court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: January 9, 2024
