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Tirado v. Miller

May 18, 2010


In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court (Allen Hurkin-Torres, J.) dated July 31, 2008, and entered in Kings County, as granted that branch of the motion of the defendants and the nonparty, Travelers Insurance Company which was, in effect, to quash a subpoena served upon the nonparty, Travelers Insurance Company and as, in effect, granted that branch of the motion which was for a protective order, inter alia, precluding the plaintiff from seeking to depose an employee of the nonparty, Travelers Insurance Company.

The opinion of the court was delivered by: Dillon, J.P.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.


(Index No. 26948/05)


We address on this appeal the question of whether a court may decide a motion upon grounds other than those argued by the parties in their submissions. We hold that a court may do so where, as here, the motion regards a nondispositive discovery issue decided upon procedural grounds, where the court takes judicial notice of a note of issue and its filing date, and where the court's grant or denial of relief is confined to the specific family of relief sought in the motion.

The time line of the parties' litigation is straight-forward. On July 2, 2004, the plaintiff, Carlo Tirado, an employee of a roofing supply company, allegedly sustained personal injuries as a result of a trip-and-fall upon a concrete walkway located on property owned by the defendants, Samuel Miller and Miriam Miller. The defendants were insured under a homeowner's policy issued by a nonparty, Travelers Insurance Company (hereinafter Travelers).

On May 16, 2005, prior to the commencement of this action, Mary Colon, an employee of the plaintiff's attorney, conversed by telephone with Richard Lombardo, a Travelers' claim adjuster. According to Colon, Lombardo recounted a conversation he had with Miriam Miller, who denied that the plaintiff or his company had been present upon her property on the date of the alleged accident. On August 31, 2005, the plaintiff commenced this action by the filing of a summons and verified complaint. On May 24, 2006, Miriam Miller testified at her deposition that in 2005 she learned for the first time that someone had fallen on her property.

A note of issue and certificate of readiness were filed on February 7, 2008.*fn1

In or about mid-June 2008, the plaintiff's counsel served upon Lombardo a subpoena duces tecum and ad testificandum, demanding stated portions of Traveler's claim file and a deposition of Lombardo regarding his conversation(s) with Miriam Miller. According to the plaintiff's counsel, Miram Miller's statements were inconsistent regarding her knowledge of the plaintiff's presence on the defendants' property. While she first denied to Lombardo any knowledge of an accident on the property, she later testified at deposition that she had learned in 2005 that someone had fallen there. The plaintiffs contended that these inconsistencies raised an issue of fact regarding Miriam Miller's credibility and would be relevant at trial.

On July 7, 2008, the defendants and Travelers moved to quash the subpoena and for a protective order as to Travelers' claim file and Lombardo's deposition testimony*fn2. They sought the requested relief upon two stated grounds. They argued, in the first instance, that the information sought by the plaintiff was privileged as attorney work product and as material prepared in anticipation of litigation. They also contended, in the second instance, that the information sought was not relevant or material to the issues of the litigation. The plaintiff opposed the motion, contending that no privilege attached to the information sought and that the insurance claim file and deposition were relevant to establishing the inconsistencies of Miriam Miller's statements.

In the order appealed from dated July 31, 2008, the Supreme Court granted the motion, inter alia, to quash, but on a ground different than those argued by the defendants and Travelers. The Supreme Court noted that the "Non-party Subpoena's [sic] were Served postNote of Issue And [that] Discovery in the form of Nonparty [D]epositions Are Not Permitted PostNote of Issue."

On appeal, the plaintiff contends that the Supreme Court was without authority to decide the motion upon a ground that was not raised in the parties' submissions and upon which the plaintiff had no opportunity to be heard. Alternatively, the plaintiff argues that the subpoenaed documents and testimony were non-privileged and were otherwise discoverable. For reasons set forth below, we find that the Supreme Court properly determined that the plaintiff's ...

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