SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
June 10, 2011
PENELOPE R. COLECHIO-THOMAS,
COUNTY OF CATTARAUGUS,
Appeal from an order of the Supreme Court, Cattaraugus County (Gerald J. Whalen, J.), entered July 13, 2010 in a personal injury action. The order denied defendant's motion and amended motion to compel deposition testimony.
Colechio-thomas v County of Cattaraugus
Appellate Division, Fourth Department 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.
Decided on June 10, 2011
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ.
It is hereby ORDERED that the order so appealed from is unanimously modified on
the law by granting that part of the amended motion to compel the deposition of plaintiff's
stepfather and as modified the order is affirmed without costs and the matter is remitted to
Supreme Court, Cattaraugus County, in accordance with the following Memorandum: Plaintiff
commenced this personal injury action seeking damages for injuries she sustained when
she fell in the parking lot of a facility owned and operated by defendant. According to
defendant, plaintiff's stepfather is the only witness who observed her fall. In its amended
motion seeking, inter alia, to compel the deposition testimony of that witness, defendant
sought to depose him at his residence with any accommodations or restrictions deemed
by Supreme Court to be appropriate to protect his needs. Although plaintiff provided the
affirmation of her stepfather's primary care physician stating that the witness is not physically
or psychologically able to "endure" a deposition, we nevertheless agree with defendant that
the court abused its discretion in denying its amended motion to compel the deposition of the
witness with any necessary restrictions and accommodations because defendant was
thereby deprived of discovery of his observations of the incident (cf. Button v Guererri, 298 AD2d 947).
Defendant demonstrated that, as the only witness to the incident, the deposition of plaintiff's stepfather
is material and necessary to the defense of the action (see CPLR 3101 [a]; White v Tutor Time, 71
AD3d 761, 761-762; cf. Balla v Jones, 300 AD2d 1076). Defendant further demonstrated that the
witness is "so sick or infirm as to afford reasonable grounds of belief that he . . . will not be able
to attend the trial" and thus that a deposition is necessary to secure his testimony (CPLR 3101
[a] ). We therefore modify the order by granting that part of the amended motion to compel
the deposition of plaintiff's stepfather, and we remit the matter to Supreme Court to determine
the location and duration of the deposition and any necessary accommodations or restrictions
required to protect his needs.
Entered: June 10, 2011
Patricia L. Morgan Clerk of the Court
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