Preview
FILED: NEW YORK COUNTY CLERK 09/13/2019
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NYSCEF DOC. NO. 872
436 RECEIVED NYSCEF: 09/13/2019
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SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
PRESENT: MAliUEL J. MENDEZ PART 13
Justice
IN RE: NEW YORK CITY ASI)E$TOS LITIdÄfiOW ymmchd Ork
THOMAS GALLEN and MAURA GALLEN,
INDEX NO. 190343 /15
Plaintiff
MOTION DATE 10-03-2017
- against -
MOTION SEQ. NO. 011
AERCO INTERNATIONAL, INC., et al.,
MOTION CAL. NO.
Defendants.
The following papers,numbered 1 to _8_ were read on this motion by settled party JCB INC. to quash a
subpoena Ad Testificandum, and for a protective order:
PAPERS NUMBERED
Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... 1- 4
Answering Affidavits - Exhibits 5 - 8
Replying Affidavits
Cross-Motion: O Yes X No
z
O Upon a reading of the foregoing cited papers it is ordered that settled party JCB
INC.'s motion to quash a subpoena Ad Testificandum served upon itby defendant
Burnham LLC, and for a protective order precluding Burnham LLC from taking any live
trial testimony in this action from any JCB INC. representative, is granted and the
O subpoena is quashed. Burnham LLC, may make use of the non-party's interrogatories
and deposition at trial, in accordance with the CMO dated June 20, 2017.
O E
JCB INC. settled the claims asserted against it with plaintiff. Defendant Burnham
...i LLC served on settled party JCB INC.. a subpoena Ad Testificandum dated August 30,
O 2017 requiring the appearance of "the individual designated JCB INC. as its
by
corporate representative/person most knowledgeable for the trial in this matter.... to
u. z give testimony in this action as a witness at trial with respect to all matters reisvant to
this action, including the following specific subject areas:
"1- The Company's historical knowledge of the hazards or potential hazards of
asbestos, and specifically when and how the company knew that asbestos could cause
u asbestosis, lung cancer and/or mesothelioma;
i-
2- The corporate of the Company;
history
a.
3- Knowledge of the Company's sale and/or distribution of asbestos-
use, any
containing equipment and/or products manufactured, supplied, distributed, re-branded
and/or sold by the company or any of its predecessor entities from 1958 through 1985
(Mr. Carilli's alleged period of exposure to asbestos);
4- statements the Company's asbestos-
Any warnings/precautionary concerning
containing equipment or products identified in the above captioned matter regarding
Potential asbestos hazard associated with its
O
i-
products;
O 5- Company's membership in and/or affiliation with any of the following trade
associations or other entities that disseminated information regarding asbestos or
occupational health hazards generally, including but not limited to: National Safety
Council, Industrial Hygiene Foundation, American Ceramics Society, the Asbestos
information Association of North America, The American Petroleum institute, the
1
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American Society of Mechanical the
Engineers, !!!inois Manufacturer's Association,
Asbestos Textile institute and/or the Asbestos information Association.
6- Knowledge of the Company's catalogs, order forms, pamphlets, brochures or
any other advertising material the Company's products or
regarding equipment
identified in above captioned matter the relevant time period of plaintiff's
during
alleged exposure.
7- matters."
All other relevant (Mot. Exh. A)
Settled party JCB INC. moves pursuant to CPLR §§3101 and 2304 to quash the
subpoena, and pursuant to CPLR §3103 for a protective order. JCB INC. argues that
this subpoena is an improper attempt by Burnham LLC to obtain and should
discovery
not be allowed at this late stage. italso argues that the subpoena is in
lacking
specificity, over broad, and burdensome, and will create an unreasonable expense and
disadvantage to JCB INC. as itis being served on the eve of trial. Under these
circumstances, itargues, a motion to quash the trial subpoena and/or a protective
order precluding Burnham LLC from deposition or interrogatories in
using testimony
| this action from a JCB INC. representative is warranted. Italso argues that itis a
settling defendant and that forcing itto produce a witness would be to public
contrary
policy fostering and encouraging settlement.
Burnham LLC opposes the motion and argues that the subpoena is proper, valid
and enforceable. Itargues that the plaintiff Thomas Gallen over the course of his seven
day deposition that took place in January of 2017, identified JCB INC. as a manufacturer
of asbestos containing products, specifically backhoes, on which he performed brake
replacements from 1967 to 1971. Burnham LLC states that based on this identification,
and to ensure a fair allocation of liability at trial, Burnham LLC subpoenaed JCB INC.
to at trial regarding the subject matter defineated in the subpoena. Burham LLC
testify
alternatively seeks to have this Court allow the admission of answers to interrogatories
and deposition testimony of JCB INC.'s corporate representative at trial.
Pursuant to CPLR § 3101(a)(4) "There shall be full disclosure of all matters
material and necessary in the prosecution or defense of an action, regardless of the
burden of proof by.... Any other person, upon notice stating the circumstances or
required."
reasons such disclosure is sought or
Pursuant to CPLR §1601 a party defendant is entitled to place before the jury the
conduct of a person not a party to the action, except one over which the plaintiff was
not able to obtain jurisdiction, to determine the equitable share of culpability of the
person not a party (see CPLR § 1601; McKinney's Consolidated Laws of N.Y. Section
1601:2)
According
to CPLR § 1601 Burnham LLC, as a party defendant, is entitled to
place before the jury the conduct of a settled party, such as JCB INC. to determine its
equitable share of culpability.
unlimited"
"The power to issue a Subpoena Ad Testificandum is absolute and
( Ocean-Clear, inc., v. Continental Casualty Company, 94 A.D.2d 717, 462 N.Y.S.2d 251
[2"d. Dept. 1983]). Therefore Burnham LLC had a right to issue a subpoena Ad
Testificandum to non-party JCB INC. "A motion to quash or vacate is the exclusive
issuer"
vehicle to challenge the validity of a subpoena or the jurisdiction of its (Ayubo
"
v. Eastman Kodak Company, 158 A.D.2d 641, 551 N.Y.S.2d 944 [2"d. Dept. 1990]). The
person challenging the subpoena bears the burden of demonstrating a lack of
authority, a lack of relevancy or a lack of a factual basis for the issuance of the
subpoena"
( Hogan v. Cuomo, 67 A.D.3d 1144, 888 N.Y.S.2d 665 [3'd. Dept. 2009]).
"An application to quash a subpoena 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 ing (Anheuser-Busch, Inc., v.
Abrams, 71 N.Y.2d 327, 520 N.E.2d 535, 525 N.Y.S.2d 816 88]; Velez v. Hunts Point
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Multi-serv. Ctr., Inc., 29 A.D.3d 104, 811 N.Y.S.2d 5 [1$'. Dept. 2006]; Empire Wine &
Spirits LLC v. Colon 145 A.D.3d 1157, 43 N.Y.S.3d 542 [3"'. Dept. Hogan v.
2016];
Cuomo, Supra; Ayubo v. Eastman Kodak Company, Supra]).
A trial subpoena cannot be over broad and a pa cannot use a trial subpoena
to obtain discovery that itfailed to obtain pre-trŸl disclosure Bour v.
during ( Bleecker
LLC, 104 A.D.3d 454, 961 N.Y.S.2d 98 [1"'. Dept. 2013]). a trial subpoena served
Quashing
on a non-party that is over broad ,and used to secure that should
improperly discovery
have been obtained during pre-trial disclosure.
Absent the subpoena being over broad or served to obtain discovery that
should have been obtained during pre-trial disclosure, ifthe subpoena complies with
the notice requirements, and the disclosure sou ht is relevant to the prosecution or
defense of an action, the motion to quash the s oena should be denied; unless the
party challenging the subpoena establishes that e information sought is utterl
irrelevant to the action, or that the futility of the process to uncover le timate
anything
is inevitable or obvious (see Kapon v. Koch, 23 N.Y.3d 32, 11 N.E.3d 709, 988 N. .S.2d
559 [2014]).
Burnham LLC is not requesting the production of documents, it is requesting a
witness to provide testimony at trial. The subpoena served by Burnham LLC is not over
broad and has not been served to obtain discovery that should have been obtained
during pre-trial disclosure. The subpoena on its face provides notice of the specific
items being requested, which are reisvant to the establishing of the equitable shares of
liability in this action. JCB INC., the party challenging the subpoena, has not
established on this record that the information sought is utterly irrelevant to the action,
or that the futility of the process to uncover anything legitimate is inevitable or obvious.
JCB INC.'s reliance on the Evans v. 3M case is misplaced. The facts herein are
starkly different from the facts in Evans. In Evans the subpoena was a Duces Tecum and
Ad Testificandum requesting production of voluminous records which should have been
obtained pre-trial disclosure, was over broad because itrequested information
during
beyond the claimed exposure periods, was served close to the end of the trial when the
court and the attorneys were a jury charge conference, and was served
contemplating
on short notice making itdifficult for the witness to be available to testify in light of
personal commitments and company obligations.
In this case JCB INC. has been served with the subpoena before the parties
commenced selection, the subpoena is solely Ad Testificandum, itseeks
jury
pertaining to the plaintiff's specific exposure period, is not over broad or
testimony
unduly burdensome, and does not seek documentation that should have been
obtained during pre-trial disclosure.
However JCB INC. argues that as a settling party, forcing itto produce a witness,
is contrary to public policy fostering and encouraging settlement.
This court is of the opinion that, as a settling party, forcing itto produce a
witness at the trial of this matter is contrary to the policy of fostering and encouraging
settlements, and to the NEW YORK CITY ASBESTOS LITlGATION (NYCAL) CASE
MANAGEMENT ORDER (CMO) dated June 20, 2017, slated to take effect on July 20, 2017
and recently implemented on September 19, 2017 by the lifting of the Appellate Division
First Department stay.
"The CMO governs various pre-trial and trial procedures in NYCAL....and differs
from the CPLR in numerous ways in an attempt to address issues that permeate
asbestos litigation....Such as allowing the limited use of hearsay for article 16
purposes."( see decision accompanying CMO dated June 20, 2017, Moulton, J.)
Justice Moulton stated in his decision accompanying the June 20, 2017 CMO with
respect to the limited use of hearsay for article 16 purposes..."Given the longevity of
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aspestos fitigation, many corporate representatives with personal krtowledge about a
company's asbestos-related products, and the if given to
warnings, any, the users of
such products, have either retired or died. Accordingly, defendants sought to relax
hearsay rules to admit some types of information that might otherwise be barred by
strict adherence to New York State's rules of evidence. in our discussions defendants
argued that they should be allowed to use both answers and
interrogatory depositions of
non-parties to prove that non-parties should be included on the verdict sheet for article
16 purposes.... Defendants reason these answers are
interrogatory sufficiently reliable to
be used by other defendants, at least for the limited purpose of a
demonstrating that
non-party sold a product that contained or used asbestos, and failed to warn about the
dangers of asbestos.... The court agrees that this limited article 16 relief is warranted
given the age of asbestos litigation and the defendants face in that
difficulty proving
other non-party entities should be considered the as potential causes of a
by jury
plaintiff's disease. interrogatory answers product identification are reliable
concerning
in that it is against the answering entity's interest to admit that its product contained
asbestos, or required that asbestos be used to further the product s purpose. An
admission concerning a failure to warn is similarly against interest. Defendants in
NYCAL generally are required to answer the standard form interrogatories contemplated
by the CMO only once. The interrogatory answers are then used in all NYCAL cases....
The [CMO] signed on today's date allows for the use of interrogatory answers as
described above.... Of course, a settled defendant's deposition testimony can be
admissible in certain circumstances for Article 16 purposes under CPLR 3117(2).
However that section applies only to settled defendants, and contains other
requirements...."
( see decision accompanying CMO dated June 20, 2017 pp 22-23).
The CMO, in its section XIll Use at trial of Nonparty Interrogatories and
Depositions, states:
"(A) Use of Nonparty Interrogatories. Answers by non-parties of NYCAL standard
sets of interrogatories may be used at trialto prove: 1) that a product or products of the
nonparty
contamed asbestos, or that asbestos was used in conjunction with the
nonparties'
product or products, and/or 2) any failure to warn by the nonparty
concerning an asbestos-containing product and/or the use of asbestos m association
with a product......for purposes of this section a non-party shall include a settled party.
(B) Use of Non-party Depositions. Nonparty depositions may be used where
CPLR..."
allowed by the
Justice Moulton's decision accompanying the CMO, and the CMO, clearly allow
the use by defendants in a NYCAL action of non-party and settled party interrogatories,
and deposition of settling defendants ( under certain circumstances). This use is
allowed due to the age of asbestos litigation and the difficulty defendants face in proving
that other, non-pa and settling, entities should be considered the jury
bydefendants' as potential
causes of a plamti s disease. The use of non-party and settling
interrogatones also serves to streamline the trial process, by allowing the defendants to
prove the culpability of these entities without the need of producmg a witness for this
purpose. In essence following the CMO obviates the need to subpoena witnesses from
non-parties and settling defendants in order to establish their equitable share of
culpability.
CPLR §3117[a][2] was amended in 1996 to permit the use at trial of deposition
testimony of an agent or employee of party to the action "as of the time the deposition
was taken (and not necessanly at the time of trial as well)....Post-deposition settlement
of the deponent (or of the deponent's employer) would no longer bar admission of the
deposition."
The revision was perceived as a means of alleviating any potential
discouragement of settlements, because "By its provisions, the deposition would
become admissible pursuant to CPLR §3117[a][2] upon application of a party who was
adverse to the deponent (or adverse to the party for whom deponent appeared) as of the
date of the deposition"(see New York Bill Jacket, 1996, Ch. 117 New York Bill Jacket A.D.
7545-A pg. 10). The Trial Court in its discretion determines the admissibility of
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deposition testimony used as evidence. Deposition testimony used pursuant to CPLR
§3117[a][2], must be admissible under the rules of evidence (Novas v. Zuckerman, 93
A.D. 3d 941 [1**
585, N.Y.S. 2d 84 Dept., and Rivera v. New York Transit
2012] City
54 A.D. 3d 863 [1**
Authority 545, N.Y.S. 2d 201 Dept., 2008]).
in this case the deposition of a witness on behalf of JCB
testimony INC. taken
before settlement may be admissible evidence and be used for the
may limited purpose
of determining liability under CPLR 1601. To the extent the admits to
§ testimony the
knowledge of the hazards of asbestos, the manufacture of ashestos related products,
and failure to warn, that is admissions against interest of the it is
party deponent,
admissible evidence of the facts against that (Rivera v. New York Transit
party City
Authority 54 A.D. 3d 545, supra and GJF Const, inc. v. Sirius America ins. Co., 89 A.D.
*
3d 622, 934 N.Y.S. 2d 697 [1 Dept ,2011], facts admitted in the deposition are informal
judicial admissions (Richter, J., concurring, at pgs. 626-627).
The use of interrogatories is governed by the language of CPLR §3131, and
the party"
answers "may be used to the same extent as the depositions of a
(McKinney's Consolidated Laws of New York Annotated CPLR §3131). The Court
agrees that limited article 16 relief is warranted given the age of asbestos litigation and
the difficulty defendants face in proving that other non-party entities should be
considered by the jury as potential causes of a plaintiff's disease. interrogatory
answers concerning product identification are also reliable in that it is against the
answering entity's interest to admit that its product contained asbestos, or required
that asbestos be used to further the product's purpose. An admission concerning a
failure to warn is similarly against interest. Defendants in NYCAL generally are
required to answer the standard form interrogatories only once.
It is no secret that these NYCAL cases have a large number of defendants, most
of which settle prior to or even during the trial. Ittakes weeks to select a jury and
months to complete a trial of one of these cases; this is without the need for the
production by a non-party or settling defendant of a witness at trial. These already
complicated, lengthy trials would become even lengthier. The mechanism for the
defendant to meet its Article 16 burden through interrogatories, and at times through
depositions, without the need of producing witnesses will streamline the trial,and
saves time by reducing the number of witnesses called at trial, while affording the
defendant the opportunity to meet its CPLR Article 16 burden. in sum itpromotes
judicial economy and efficiency, and provides a settling defendant finality.
Accordingly, itis ORDERED that the motion by JCB INC., brought by Order to
Show Cause, to quash a subpoena Ad Testificandum served upon it by defendant
Burnham LLC, and for a protective order, is granted, and it is further ,
ORDERED that the subpoena is quashed, and it isfurther,
ORDERED that Burnham LLC may make use of the settling party's JCB INC.
interrogatories and deposition at trial in accordance with the CMO dated June 20, 2017,
and it is further,
ORDERED that the remainder of the relief sought in this motion is denied.
ENTER: -. -: :.
Dated: October 5, 2017
MA UEL J. ENDEZ
J.S.C.
Check one: FINAL DISPOSITION X NON-FINAL DISPOSITION
Check if appropriate: O DO NOT POST O REFERENCE
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Preview
FILED: NEW YORK COUNTY CLERK 09/13/2019 02/18/2020 11:41 12:52 AM PM INDEX NO. 190194/2017 190225/2018 NYSCEF DOC. NO. 872 436 RECEIVED NYSCEF: 09/13/2019 02/18/2020 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: MAliUEL J. MENDEZ PART 13 Justice IN RE: NEW YORK CITY ASI)E$TOS LITIdÄfiOW ymmchd Ork THOMAS GALLEN and MAURA GALLEN, INDEX NO. 190343 /15 Plaintiff MOTION DATE 10-03-2017 - against - MOTION SEQ. NO. 011 AERCO INTERNATIONAL, INC., et al., MOTION CAL. NO. Defendants. The following papers,numbered 1 to _8_ were read on this motion by settled party JCB INC. to quash a subpoena Ad Testificandum, and for a protective order: PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... 1- 4 Answering Affidavits - Exhibits 5 - 8 Replying Affidavits Cross-Motion: O Yes X No z O Upon a reading of the foregoing cited papers it is ordered that settled party JCB INC.'s motion to quash a subpoena Ad Testificandum served upon itby defendant Burnham LLC, and for a protective order precluding Burnham LLC from taking any live trial testimony in this action from any JCB INC. representative, is granted and the O subpoena is quashed. Burnham LLC, may make use of the non-party's interrogatories and deposition at trial, in accordance with the CMO dated June 20, 2017. O E JCB INC. settled the claims asserted against it with plaintiff. Defendant Burnham ...i LLC served on settled party JCB INC.. a subpoena Ad Testificandum dated August 30, O 2017 requiring the appearance of "the individual designated JCB INC. as its by corporate representative/person most knowledgeable for the trial in this matter.... to u. z give testimony in this action as a witness at trial with respect to all matters reisvant to this action, including the following specific subject areas: "1- The Company's historical knowledge of the hazards or potential hazards of asbestos, and specifically when and how the company knew that asbestos could cause u asbestosis, lung cancer and/or mesothelioma; i- 2- The corporate of the Company; history a. 3- Knowledge of the Company's sale and/or distribution of asbestos- use, any containing equipment and/or products manufactured, supplied, distributed, re-branded and/or sold by the company or any of its predecessor entities from 1958 through 1985 (Mr. Carilli's alleged period of exposure to asbestos); 4- statements the Company's asbestos- Any warnings/precautionary concerning containing equipment or products identified in the above captioned matter regarding Potential asbestos hazard associated with its O i- products; O 5- Company's membership in and/or affiliation with any of the following trade associations or other entities that disseminated information regarding asbestos or occupational health hazards generally, including but not limited to: National Safety Council, Industrial Hygiene Foundation, American Ceramics Society, the Asbestos information Association of North America, The American Petroleum institute, the 1 1 of 5 FILED: NEW YORK COUNTY CLERK 09/13/2019 02/18/2020 11:41 12:52 AM PM INDEX NO. 190194/2017 190225/2018 NYSCEF DOC. NO. 872 436 RECEIVED NYSCEF: 09/13/2019 02/18/2020 American Society of Mechanical the Engineers, !!!inois Manufacturer's Association, Asbestos Textile institute and/or the Asbestos information Association. 6- Knowledge of the Company's catalogs, order forms, pamphlets, brochures or any other advertising material the Company's products or regarding equipment identified in above captioned matter the relevant time period of plaintiff's during alleged exposure. 7- matters." All other relevant (Mot. Exh. A) Settled party JCB INC. moves pursuant to CPLR §§3101 and 2304 to quash the subpoena, and pursuant to CPLR §3103 for a protective order. JCB INC. argues that this subpoena is an improper attempt by Burnham LLC to obtain and should discovery not be allowed at this late stage. italso argues that the subpoena is in lacking specificity, over broad, and burdensome, and will create an unreasonable expense and disadvantage to JCB INC. as itis being served on the eve of trial. Under these circumstances, itargues, a motion to quash the trial subpoena and/or a protective order precluding Burnham LLC from deposition or interrogatories in using testimony | this action from a JCB INC. representative is warranted. Italso argues that itis a settling defendant and that forcing itto produce a witness would be to public contrary policy fostering and encouraging settlement. Burnham LLC opposes the motion and argues that the subpoena is proper, valid and enforceable. Itargues that the plaintiff Thomas Gallen over the course of his seven day deposition that took place in January of 2017, identified JCB INC. as a manufacturer of asbestos containing products, specifically backhoes, on which he performed brake replacements from 1967 to 1971. Burnham LLC states that based on this identification, and to ensure a fair allocation of liability at trial, Burnham LLC subpoenaed JCB INC. to at trial regarding the subject matter defineated in the subpoena. Burham LLC testify alternatively seeks to have this Court allow the admission of answers to interrogatories and deposition testimony of JCB INC.'s corporate representative at trial. Pursuant to CPLR § 3101(a)(4) "There shall be full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of the burden of proof by.... Any other person, upon notice stating the circumstances or required." reasons such disclosure is sought or Pursuant to CPLR §1601 a party defendant is entitled to place before the jury the conduct of a person not a party to the action, except one over which the plaintiff was not able to obtain jurisdiction, to determine the equitable share of culpability of the person not a party (see CPLR § 1601; McKinney's Consolidated Laws of N.Y. Section 1601:2) According to CPLR § 1601 Burnham LLC, as a party defendant, is entitled to place before the jury the conduct of a settled party, such as JCB INC. to determine its equitable share of culpability. unlimited" "The power to issue a Subpoena Ad Testificandum is absolute and ( Ocean-Clear, inc., v. Continental Casualty Company, 94 A.D.2d 717, 462 N.Y.S.2d 251 [2"d. Dept. 1983]). Therefore Burnham LLC had a right to issue a subpoena Ad Testificandum to non-party JCB INC. "A motion to quash or vacate is the exclusive issuer" vehicle to challenge the validity of a subpoena or the jurisdiction of its (Ayubo " v. Eastman Kodak Company, 158 A.D.2d 641, 551 N.Y.S.2d 944 [2"d. Dept. 1990]). The person challenging the subpoena bears the burden of demonstrating a lack of authority, a lack of relevancy or a lack of a factual basis for the issuance of the subpoena" ( Hogan v. Cuomo, 67 A.D.3d 1144, 888 N.Y.S.2d 665 [3'd. Dept. 2009]). "An application to quash a subpoena 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 ing (Anheuser-Busch, Inc., v. Abrams, 71 N.Y.2d 327, 520 N.E.2d 535, 525 N.Y.S.2d 816 88]; Velez v. Hunts Point 2 Îf 5 FILED: NEW YORK COUNTY CLERK 09/13/2019 02/18/2020 11:41 12:52 AM PM INDEX NO. 190194/2017 190225/2018 NYSCEF DOC. NO. 872 436 RECEIVED NYSCEF: 09/13/2019 02/18/2020 Multi-serv. Ctr., Inc., 29 A.D.3d 104, 811 N.Y.S.2d 5 [1$'. Dept. 2006]; Empire Wine & Spirits LLC v. Colon 145 A.D.3d 1157, 43 N.Y.S.3d 542 [3"'. Dept. Hogan v. 2016]; Cuomo, Supra; Ayubo v. Eastman Kodak Company, Supra]). A trial subpoena cannot be over broad and a pa cannot use a trial subpoena to obtain discovery that itfailed to obtain pre-trŸl disclosure Bour v. during ( Bleecker LLC, 104 A.D.3d 454, 961 N.Y.S.2d 98 [1"'. Dept. 2013]). a trial subpoena served Quashing on a non-party that is over broad ,and used to secure that should improperly discovery have been obtained during pre-trial disclosure. Absent the subpoena being over broad or served to obtain discovery that should have been obtained during pre-trial disclosure, ifthe subpoena complies with the notice requirements, and the disclosure sou ht is relevant to the prosecution or defense of an action, the motion to quash the s oena should be denied; unless the party challenging the subpoena establishes that e information sought is utterl irrelevant to the action, or that the futility of the process to uncover le timate anything is inevitable or obvious (see Kapon v. Koch, 23 N.Y.3d 32, 11 N.E.3d 709, 988 N. .S.2d 559 [2014]). Burnham LLC is not requesting the production of documents, it is requesting a witness to provide testimony at trial. The subpoena served by Burnham LLC is not over broad and has not been served to obtain discovery that should have been obtained during pre-trial disclosure. The subpoena on its face provides notice of the specific items being requested, which are reisvant to the establishing of the equitable shares of liability in this action. JCB INC., the party challenging the subpoena, has not established on this record that the information sought is utterly irrelevant to the action, or that the futility of the process to uncover anything legitimate is inevitable or obvious. JCB INC.'s reliance on the Evans v. 3M case is misplaced. The facts herein are starkly different from the facts in Evans. In Evans the subpoena was a Duces Tecum and Ad Testificandum requesting production of voluminous records which should have been obtained pre-trial disclosure, was over broad because itrequested information during beyond the claimed exposure periods, was served close to the end of the trial when the court and the attorneys were a jury charge conference, and was served contemplating on short notice making itdifficult for the witness to be available to testify in light of personal commitments and company obligations. In this case JCB INC. has been served with the subpoena before the parties commenced selection, the subpoena is solely Ad Testificandum, itseeks jury pertaining to the plaintiff's specific exposure period, is not over broad or testimony unduly burdensome, and does not seek documentation that should have been obtained during pre-trial disclosure. However JCB INC. argues that as a settling party, forcing itto produce a witness, is contrary to public policy fostering and encouraging settlement. This court is of the opinion that, as a settling party, forcing itto produce a witness at the trial of this matter is contrary to the policy of fostering and encouraging settlements, and to the NEW YORK CITY ASBESTOS LITlGATION (NYCAL) CASE MANAGEMENT ORDER (CMO) dated June 20, 2017, slated to take effect on July 20, 2017 and recently implemented on September 19, 2017 by the lifting of the Appellate Division First Department stay. "The CMO governs various pre-trial and trial procedures in NYCAL....and differs from the CPLR in numerous ways in an attempt to address issues that permeate asbestos litigation....Such as allowing the limited use of hearsay for article 16 purposes."( see decision accompanying CMO dated June 20, 2017, Moulton, J.) Justice Moulton stated in his decision accompanying the June 20, 2017 CMO with respect to the limited use of hearsay for article 16 purposes..."Given the longevity of 3 2f 5 FILED: NEW YORK COUNTY CLERK 09/13/2019 02/18/2020 11:41 12:52 AM PM INDEX NO. 190194/2017 190225/2018 NYSCEF DOC. NO. 872 436 RECEIVED NYSCEF: 09/13/2019 02/18/2020 aspestos fitigation, many corporate representatives with personal krtowledge about a company's asbestos-related products, and the if given to warnings, any, the users of such products, have either retired or died. Accordingly, defendants sought to relax hearsay rules to admit some types of information that might otherwise be barred by strict adherence to New York State's rules of evidence. in our discussions defendants argued that they should be allowed to use both answers and interrogatory depositions of non-parties to prove that non-parties should be included on the verdict sheet for article 16 purposes.... Defendants reason these answers are interrogatory sufficiently reliable to be used by other defendants, at least for the limited purpose of a demonstrating that non-party sold a product that contained or used asbestos, and failed to warn about the dangers of asbestos.... The court agrees that this limited article 16 relief is warranted given the age of asbestos litigation and the defendants face in that difficulty proving other non-party entities should be considered the as potential causes of a by jury plaintiff's disease. interrogatory answers product identification are reliable concerning in that it is against the answering entity's interest to admit that its product contained asbestos, or required that asbestos be used to further the product s purpose. An admission concerning a failure to warn is similarly against interest. Defendants in NYCAL generally are required to answer the standard form interrogatories contemplated by the CMO only once. The interrogatory answers are then used in all NYCAL cases.... The [CMO] signed on today's date allows for the use of interrogatory answers as described above.... Of course, a settled defendant's deposition testimony can be admissible in certain circumstances for Article 16 purposes under CPLR 3117(2). However that section applies only to settled defendants, and contains other requirements...." ( see decision accompanying CMO dated June 20, 2017 pp 22-23). The CMO, in its section XIll Use at trial of Nonparty Interrogatories and Depositions, states: "(A) Use of Nonparty Interrogatories. Answers by non-parties of NYCAL standard sets of interrogatories may be used at trialto prove: 1) that a product or products of the nonparty contamed asbestos, or that asbestos was used in conjunction with the nonparties' product or products, and/or 2) any failure to warn by the nonparty concerning an asbestos-containing product and/or the use of asbestos m association with a product......for purposes of this section a non-party shall include a settled party. (B) Use of Non-party Depositions. Nonparty depositions may be used where CPLR..." allowed by the Justice Moulton's decision accompanying the CMO, and the CMO, clearly allow the use by defendants in a NYCAL action of non-party and settled party interrogatories, and deposition of settling defendants ( under certain circumstances). This use is allowed due to the age of asbestos litigation and the difficulty defendants face in proving that other, non-pa and settling, entities should be considered the jury bydefendants' as potential causes of a plamti s disease. The use of non-party and settling interrogatones also serves to streamline the trial process, by allowing the defendants to prove the culpability of these entities without the need of producmg a witness for this purpose. In essence following the CMO obviates the need to subpoena witnesses from non-parties and settling defendants in order to establish their equitable share of culpability. CPLR §3117[a][2] was amended in 1996 to permit the use at trial of deposition testimony of an agent or employee of party to the action "as of the time the deposition was taken (and not necessanly at the time of trial as well)....Post-deposition settlement of the deponent (or of the deponent's employer) would no longer bar admission of the deposition." The revision was perceived as a means of alleviating any potential discouragement of settlements, because "By its provisions, the deposition would become admissible pursuant to CPLR §3117[a][2] upon application of a party who was adverse to the deponent (or adverse to the party for whom deponent appeared) as of the date of the deposition"(see New York Bill Jacket, 1996, Ch. 117 New York Bill Jacket A.D. 7545-A pg. 10). The Trial Court in its discretion determines the admissibility of 4 Êf 5 FILED: NEW YORK COUNTY CLERK 09/13/2019 02/18/2020 11:41 12:52 AM PM INDEX NO. 190194/2017 190225/2018 NYSCEF DOC. NO. 872 436 RECEIVED NYSCEF: 09/13/2019 02/18/2020 deposition testimony used as evidence. Deposition testimony used pursuant to CPLR §3117[a][2], must be admissible under the rules of evidence (Novas v. Zuckerman, 93 A.D. 3d 941 [1** 585, N.Y.S. 2d 84 Dept., and Rivera v. New York Transit 2012] City 54 A.D. 3d 863 [1** Authority 545, N.Y.S. 2d 201 Dept., 2008]). in this case the deposition of a witness on behalf of JCB testimony INC. taken before settlement may be admissible evidence and be used for the may limited purpose of determining liability under CPLR 1601. To the extent the admits to § testimony the knowledge of the hazards of asbestos, the manufacture of ashestos related products, and failure to warn, that is admissions against interest of the it is party deponent, admissible evidence of the facts against that (Rivera v. New York Transit party City Authority 54 A.D. 3d 545, supra and GJF Const, inc. v. Sirius America ins. Co., 89 A.D. * 3d 622, 934 N.Y.S. 2d 697 [1 Dept ,2011], facts admitted in the deposition are informal judicial admissions (Richter, J., concurring, at pgs. 626-627). The use of interrogatories is governed by the language of CPLR §3131, and the party" answers "may be used to the same extent as the depositions of a (McKinney's Consolidated Laws of New York Annotated CPLR §3131). The Court agrees that limited article 16 relief is warranted given the age of asbestos litigation and the difficulty defendants face in proving that other non-party entities should be considered by the jury as potential causes of a plaintiff's disease. interrogatory answers concerning product identification are also reliable in that it is against the answering entity's interest to admit that its product contained asbestos, or required that asbestos be used to further the product's purpose. An admission concerning a failure to warn is similarly against interest. Defendants in NYCAL generally are required to answer the standard form interrogatories only once. It is no secret that these NYCAL cases have a large number of defendants, most of which settle prior to or even during the trial. Ittakes weeks to select a jury and months to complete a trial of one of these cases; this is without the need for the production by a non-party or settling defendant of a witness at trial. These already complicated, lengthy trials would become even lengthier. The mechanism for the defendant to meet its Article 16 burden through interrogatories, and at times through depositions, without the need of producing witnesses will streamline the trial,and saves time by reducing the number of witnesses called at trial, while affording the defendant the opportunity to meet its CPLR Article 16 burden. in sum itpromotes judicial economy and efficiency, and provides a settling defendant finality. Accordingly, itis ORDERED that the motion by JCB INC., brought by Order to Show Cause, to quash a subpoena Ad Testificandum served upon it by defendant Burnham LLC, and for a protective order, is granted, and it is further , ORDERED that the subpoena is quashed, and it isfurther, ORDERED that Burnham LLC may make use of the settling party's JCB INC. interrogatories and deposition at trial in accordance with the CMO dated June 20, 2017, and it is further, ORDERED that the remainder of the relief sought in this motion is denied. ENTER: -. -: :. Dated: October 5, 2017 MA UEL J. ENDEZ J.S.C. Check one: FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: O DO NOT POST O REFERENCE 5 of 5