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Dicenso v. Wallin

Supreme Court of New York, Second Department

August 14, 2013

Dina Dicenso, appellant,
v.
David Wallin, et al., respondents. Index No. 5412/11

Meister Seelig & Fein LLP, New York, N.Y. (Howard S. Koh of counsel), for appellant.

Aaron H. Pierce, Brooklyn, N.Y. (Matthew C. Heerde of counsel), for respondents.

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), dated December 20, 2012, as denied those branches of her motion which were to compel additional nonparty depositions and additional nonparty document discovery.

ORDERED that the order is affirmed insofar as appealed from, with costs.

A party seeking disclosure from a nonparty witness must demonstrate that the disclosure sought is material and necessary, and must set forth the "circumstances or reasons" why disclosure is "sought or required" from such nonparty witness (CPLR 3101[a][4]; see Kooper v Kooper, 74 A.D.3d 6, 10, 17; Kondratick v Orthodox Church in Am., 73 A.D.3d 708, 708-709; Tenore v Tenore, 45 A.D.3d 571). Here, the plaintiff failed to demonstrate that additional testimony from the nonparty witnesses or the information sought would be material and necessary to the prosecution of this case (see CPLR 3101[a]; Farmer v Nostrand Ave. Meat & Poultry, 37 A.D.3d 653, 654; Matter of Lutz v Goldstone, 31 A.D.3d 449, 450-451). Accordingly, the Supreme Court properly denied those branches of the plaintiff's motion which were to compel additional nonparty depositions and additional nonparty document discovery.

ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.


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