June 19, 2013
NEW HAMPSHIRE INSURANCE COMPANY a/s/o ROBERT ADAMI, Plaintiff(s)
ADAMI RESTORATION, INC., M. ADAMI STONE RENOVATING CO., INC. and MARK ADAMI d/b/a AD AMI RESTORATION, INC., Defendant(s) Index No. 103495/08
DECISION AND ORDER
The Plaintiff moves to vacate the prior discovery orders dated September 24, 2012 and November 19, 2012. The defendants oppose this motion.
This motion arises from a subrogation action in which Plaintiff New Hampshire Insurance Company seeks to recover monies for substantial damages caused by a fire that occurred on the premises of its insured Robert Adami on February 21, 2006. Pending the restoration and repairs of the premises following the fire, subsequent water damage occurred as a result of alleged improper tarping of the roof. Plaintiff filed two subrogation actions against Mark Adami and his company Adami Restoration, seeking to recover monies paid to Robert Adami in the amount of $374, 201.51 for the initial fire damage and $49, 387.44 for the subsequent water damage. Although there are two separate subrogation actions, conferences and discovery for both actions have proceeded under the initial action bearing the index number of No. 103495/08. A preliminary conference was held on January 20, 2009 outlining the initial discovery schedule for the parties. Following the preliminary conference, several status and compliance conferences were held. The Plaintiff alleges an estimate of fourteen (14) status and compliance conferences. During the conferences numerous orders extended discovery dates for conducting depositions, and responding to demands and filing Note of Issue. Prior to the September 24'2012 conference the parties had complied with all prior discovery orders. During the September 24, 2012 conference parties agree to stipulate that Plaintiffs would direct their clients New Hampshire Insurance Company and Robert Adami to be re-deposed on the issue of the subsequent water damage. New Hampshire Insurance Company to be deposed on November 6, 2012 and Robert Adami to be deposed on November 13, 2012. Plaintiff did not comply with this order. During the next conference on November 19, 2012, the parties again stipulated to conduct deposition of New Hampshire Insurance Company and Robert Adami by February 15, 2013 and March 15, 2013 respectively.
In accordance with CPLR §2221 a motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it. A motion made to an improper judge under this rule shall be transferred to the proper judge.
A court as an exercise of discretion has the power to set aside a stipulation where the action is within the court's jurisdiction. Thompson Medical Co. v. Benjamin Pharmaceuticals, Inc., 4 A.D.2d 504. Settlements and stipulations openly agreed to should not be vacated or modified in the absence of compelling reasons. Thompson, supra..
Plaintiff alleged that Defendant had the entire file related to the subsequent water damage claim in its possession since May of 2010. This was almost nine months (9) prior to Robert Adami's deposition and more than two (2) years prior to Richard Sparacia's deposition. Therefore it is Plaintiffs contention that Defendant had more than enough time to examine the file and ask Robert Adami and Richard Sparacia about the subsequent water damage issue at their initial depositions, as he did. Plaintiff further alleges that Mr. Magee, counsel for the Defendants, opened up a line of questioning related to the subsequent water damage claim at the initial depositions of both Robert Adami and Richard Sparacia, and did not request further depositions at the close of the prior examinations. Defendants did not request further deposition until the September 24, 2012 compliance conference.
Defendants allege the file pertaining to the subsequent water damage was not complete, as it was agreed to by the parties that Plaintiff would produce the first-party claim file within 45 days at the July 2012 conference. Defendants further allege that Plaintiff agreed to further deposition of Robert Adami and Richard Sparacia in a stipulation signed by the parties during a September 2012 compliance conference. Plaintiff did not comply and again agreed at a November 2012 conference to produce both Robert Adami and Richard Sparacia to be re-deposed in another stipulation signed by a judge.
In looking at the record in its entirety, Plaintiff has not stated a compelling reason for the stipulations to be vacated or modified. Although Robert Adami and Richard Sparacia were both deposed, neither were thoroughly questioned on the subsequent water damage claim. Robert Adami questioning of the water damage claim consist of several lines on five (5) pages of a one hundred twenty (120) page deposition. Richard Sparacia questioning on the subsequent water damage claim consist of several lines on three (3) pages of a fifty eight (58) page deposition. Plaintiff argues Defendants' wish to re-depose plaintiffs witnesses is a tactic to stall the proceedings. This is an unfounded allegation. Plaintiff freely signed the September stipulation agreeing to allow Robert Adami and Richard Sparacia to give further deposition, without contesting the order, and when Plaintiff failed to complied they agreed again during a November 2012 conference for their witnesses to be re-deposed. Both orders of discovery were freely agreed upon, uncontested by both parties when they were signed, and therefore the Court finds no compelling or valid grounds for either order to be vacated or modified.
Accordingly, Plaintiffs motion to modify or vacate the prior discovery orders dated on September 24, 2012 and November 19, 2012 is DENIED. Discovery should continue as schedule.