Preview
FILED: NEW YORK COUNTY CLERK 12/03/2018 03:48 PM INDEX NO. 154639/2016
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/03/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------ --------------X Index No. 154639/2016
NANCY LEVIN AND FRANK LEVIN,
Plaintiffs,
-against- Hon. Heitler
Sherry
TOWN SPORTS INTERNATIONAL, LLC,
Defendant.
--------------------------------.----------------------
----X
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT TOWN SPORTS
INTERNATIONAL, LLC'S MOTION FOR AN OPEN COMMISSION
GORDON REES SCULLY MANSUKHANI, LLP
ATTORNEYS FOR DEFENDANT TOWN SPORTS INTERNATIONAL, LLC
500 MAMARONECK AVENUE, SUITE 503
HARRISON, NEW YORK 10528
PHONE: (914) 777-2225
FAX: (914) 709-4566
I I 17486/4
1382831v.I
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PRELIMINARY STATEMENT
Defendant, TOWN SPORTS INTERNATIONAL, LLC (hereinafter "TSI") respectfully
submits this Memorandum of Law in support of its Motion for an open commission to subpoena
the testimony of Ms. Darcy Sloe pursuant to CPLR §§ 3108 and 3113 on the basis that she
possesses significant information that is relevant and necessary to TSI's defense of this action.
Ms. Attah is located in Maryland and the instant case is a New York matter.
STATEMENT OF RELEVANT FACTS
Pursuant to subpoena, the out-of-state deposition of non-party witness, Richard Attah,
was conducted on Noveniber 2, 2018. Mr. Attah testified that he worked as a personal trainer at
Washington Sports Club on the date of the subject accident. Mr. Attah testified that he was
working out when a female gym patron, who he had known, got his attention and advised him
that someone fell and was bleeding. Mr. Attah testified that this female communicated to him
that she witnessed the alleged accident, and that the Plaintiff was not looking when she tripped
and fell on a power cord. Mr. Attah identified this female as a Cmwacian in her mid 50's whose
first name was Darcy. Upon information and belief, the female who witnessed plaintiff trip and
fall is Darcy Sloe.
Since Darcy Sloe's identification, attempts have been made to contact Ms. Sloe and
secure a convenient date for her to testify; however, Ms. Sloe has not returned any calls.
As a result, TSI now seeks an open commission to subpoena the testimony of Darcy Sloe
with regard to the aforementioned incident; as her testimony is relevãñt and secessary to TSI's
defense of this action. A subpoena for Ms. Sloe has been prepared and is annexed hereto as
Exhibit "A".
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ARGUMEN_T
A MOTION FOR AN OPEN COMMISSION IS APPROPRIATE IN THIS MATTER
BECAUSE THE COURT IS EMPOWERED TO ISSUE OPEN COMMISSIONS TO
PROCURE TESTIMONY OF A NON-PARTY WITNESS OUTSIDE THE STATE OF
NEW YORK
Under CPLR § 3108, "a deposition may be taken on written questions when the
examining party and the deponent so stipulate or when the testimony is to be taken without the
state. A commission or letters rogatory may be issued where necessary or convenient for the
state."
taking of a deposition outside of the McKinney's Consolidated Laws, New York Civil
Practice Laws and Rules 3108. It is also permissible under § 3108 for the Court to have a
"commissioner appeiñted to seek disclosure of a tangible paper or thing in the possession of an
deposition."
out-of-state witness without having to schedule a See Siegel, Practice
Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR § 3108:5, at 462.
The commissioner appointed in a sister state, Maryland in this case, can issue a subpoena
compelling the witness to appear for a deposition within the sister state's jurisdiction as well as to
obtain records sought under the same commission. See Morgan v. Dell Publishing Co., Inc., 185
AD2d 876 (2d Dept 1992).
Courts have consistently granted such applications where the disclosure sought by a
necessary"
respective party is considered "evidence material and for the defense of a particular
action. See Stanzione v. Consumer Builders, Inc., 149 A.D.2d 682 (2d Dept. 1989); Wynkoop v.
County of Nassau, 139 A.D.2d 731 (2d Dept. 1988). Tadeed, "CPLR Article 31, of which CPLR
§ 3108 is a part, is to be construed liberally to effect its goal of full disclosure of 'all evidence
* * * action.'"
material and necessary in the defense of an See Morgan v. Dell Publishing Co.,
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185 A.D.2d 876 (2d Dept. 1992), quoting CPLR 3101(a); see also Allen v. Crowell-Collier Pub.
Co., 21 N.Y.2d 403 (1968).
For example, in Stanzione, plaintiff commenced a personal injury action alleging a fall
from scaffolding made of allegedly defective wood supplied by the defendant. Testimony at
plaintiffs deposition indicated that the plaintiffs brother and son witnessed the accident. Since
the brother and son resided in New Jersey and Pennsylvania, respectively, the court granted the
defendant's motion for an open commission to facilitate discovery. Similarly, in Kekis v. Park
Slope Emergency Physician Service, P.C., 244 A.D.2d 463 (2nd Dept. 1997), the Appellate
Division held that since an emergency room record relating to the treatment of the plaintiff
which gave rise to the action listed the physician as Joseph D'Allessio, a medical student at that
time, the plaintiff was entitled to depose D'Allessio upon an open commission since he resided
outside of New York State. Just like the medical student in Kekis, Ms. Sloe possesses
information that is material and necessary to the defense of this matter, and it is respectfully
submitted that this Court should apply the same analysis herein and grant the instant motion.
Moreover, since Ms. Sloe is located outside the State of New York in Maryland, and thus
will not be subject to subpoena power to compel his appearance at trial, it is respectfully
requested that a subpoena be made to Ms.Sloe so that TSI can take his testimony with regard to,
inter alia, his knowledge of the incident and the usual placement of the allegedly hazardous
object as such information is material and necessary to TSI's defense in this action.
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CONCLUSION
Based on the foregoing reasons, Defendant, TOWN SPORTS INTERNATIONAL, LLC,
requests that its motion for an open commjssion be granted, and for such other and further relief
that this Court deems just and proper.
No prior request for this relief has been made to this or any other Court.
Dated: Harrison, New York
December 3, 2017
Respectfully Submitted,
GO N EE SCULLY MANSUKHANI, LLP
ry ft. Picciano
Attorney for Defendant
TOWN SPORTS INTERNATIONAL, LLC
500 Mamaroneck Ave, Suite 503
Harrison, NY 10528
914-777-2225
File No.: TSIKK-1117486
II1748W41382831v
I
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 12/03/2018 03:48 PM INDEX NO. 154639/2016 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/03/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------ --------------X Index No. 154639/2016 NANCY LEVIN AND FRANK LEVIN, Plaintiffs, -against- Hon. Heitler Sherry TOWN SPORTS INTERNATIONAL, LLC, Defendant. --------------------------------.---------------------- ----X MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT TOWN SPORTS INTERNATIONAL, LLC'S MOTION FOR AN OPEN COMMISSION GORDON REES SCULLY MANSUKHANI, LLP ATTORNEYS FOR DEFENDANT TOWN SPORTS INTERNATIONAL, LLC 500 MAMARONECK AVENUE, SUITE 503 HARRISON, NEW YORK 10528 PHONE: (914) 777-2225 FAX: (914) 709-4566 I I 17486/4 1382831v.I 1 of 5 FILED: NEW YORK COUNTY CLERK 12/03/2018 03:48 PM INDEX NO. 154639/2016 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/03/2018 PRELIMINARY STATEMENT Defendant, TOWN SPORTS INTERNATIONAL, LLC (hereinafter "TSI") respectfully submits this Memorandum of Law in support of its Motion for an open commission to subpoena the testimony of Ms. Darcy Sloe pursuant to CPLR §§ 3108 and 3113 on the basis that she possesses significant information that is relevant and necessary to TSI's defense of this action. Ms. Attah is located in Maryland and the instant case is a New York matter. STATEMENT OF RELEVANT FACTS Pursuant to subpoena, the out-of-state deposition of non-party witness, Richard Attah, was conducted on Noveniber 2, 2018. Mr. Attah testified that he worked as a personal trainer at Washington Sports Club on the date of the subject accident. Mr. Attah testified that he was working out when a female gym patron, who he had known, got his attention and advised him that someone fell and was bleeding. Mr. Attah testified that this female communicated to him that she witnessed the alleged accident, and that the Plaintiff was not looking when she tripped and fell on a power cord. Mr. Attah identified this female as a Cmwacian in her mid 50's whose first name was Darcy. Upon information and belief, the female who witnessed plaintiff trip and fall is Darcy Sloe. Since Darcy Sloe's identification, attempts have been made to contact Ms. Sloe and secure a convenient date for her to testify; however, Ms. Sloe has not returned any calls. As a result, TSI now seeks an open commission to subpoena the testimony of Darcy Sloe with regard to the aforementioned incident; as her testimony is relevãñt and secessary to TSI's defense of this action. A subpoena for Ms. Sloe has been prepared and is annexed hereto as Exhibit "A". 1117486/41382831v.I 2 of 5 FILED: NEW YORK COUNTY CLERK 12/03/2018 03:48 PM INDEX NO. 154639/2016 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/03/2018 ARGUMEN_T A MOTION FOR AN OPEN COMMISSION IS APPROPRIATE IN THIS MATTER BECAUSE THE COURT IS EMPOWERED TO ISSUE OPEN COMMISSIONS TO PROCURE TESTIMONY OF A NON-PARTY WITNESS OUTSIDE THE STATE OF NEW YORK Under CPLR § 3108, "a deposition may be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the state. A commission or letters rogatory may be issued where necessary or convenient for the state." taking of a deposition outside of the McKinney's Consolidated Laws, New York Civil Practice Laws and Rules 3108. It is also permissible under § 3108 for the Court to have a "commissioner appeiñted to seek disclosure of a tangible paper or thing in the possession of an deposition." out-of-state witness without having to schedule a See Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR § 3108:5, at 462. The commissioner appointed in a sister state, Maryland in this case, can issue a subpoena compelling the witness to appear for a deposition within the sister state's jurisdiction as well as to obtain records sought under the same commission. See Morgan v. Dell Publishing Co., Inc., 185 AD2d 876 (2d Dept 1992). Courts have consistently granted such applications where the disclosure sought by a necessary" respective party is considered "evidence material and for the defense of a particular action. See Stanzione v. Consumer Builders, Inc., 149 A.D.2d 682 (2d Dept. 1989); Wynkoop v. County of Nassau, 139 A.D.2d 731 (2d Dept. 1988). Tadeed, "CPLR Article 31, of which CPLR § 3108 is a part, is to be construed liberally to effect its goal of full disclosure of 'all evidence * * * action.'" material and necessary in the defense of an See Morgan v. Dell Publishing Co., | I t7486/4138283Iv.1 3 of 5 FILED: NEW YORK COUNTY CLERK 12/03/2018 03:48 PM INDEX NO. 154639/2016 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/03/2018 185 A.D.2d 876 (2d Dept. 1992), quoting CPLR 3101(a); see also Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403 (1968). For example, in Stanzione, plaintiff commenced a personal injury action alleging a fall from scaffolding made of allegedly defective wood supplied by the defendant. Testimony at plaintiffs deposition indicated that the plaintiffs brother and son witnessed the accident. Since the brother and son resided in New Jersey and Pennsylvania, respectively, the court granted the defendant's motion for an open commission to facilitate discovery. Similarly, in Kekis v. Park Slope Emergency Physician Service, P.C., 244 A.D.2d 463 (2nd Dept. 1997), the Appellate Division held that since an emergency room record relating to the treatment of the plaintiff which gave rise to the action listed the physician as Joseph D'Allessio, a medical student at that time, the plaintiff was entitled to depose D'Allessio upon an open commission since he resided outside of New York State. Just like the medical student in Kekis, Ms. Sloe possesses information that is material and necessary to the defense of this matter, and it is respectfully submitted that this Court should apply the same analysis herein and grant the instant motion. Moreover, since Ms. Sloe is located outside the State of New York in Maryland, and thus will not be subject to subpoena power to compel his appearance at trial, it is respectfully requested that a subpoena be made to Ms.Sloe so that TSI can take his testimony with regard to, inter alia, his knowledge of the incident and the usual placement of the allegedly hazardous object as such information is material and necessary to TSI's defense in this action. I I I7486/40H2101v 1 4 of 5 FILED: NEW YORK COUNTY CLERK 12/03/2018 03:48 PM INDEX NO. 154639/2016 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/03/2018 CONCLUSION Based on the foregoing reasons, Defendant, TOWN SPORTS INTERNATIONAL, LLC, requests that its motion for an open commjssion be granted, and for such other and further relief that this Court deems just and proper. No prior request for this relief has been made to this or any other Court. Dated: Harrison, New York December 3, 2017 Respectfully Submitted, GO N EE SCULLY MANSUKHANI, LLP ry ft. Picciano Attorney for Defendant TOWN SPORTS INTERNATIONAL, LLC 500 Mamaroneck Ave, Suite 503 Harrison, NY 10528 914-777-2225 File No.: TSIKK-1117486 II1748W41382831v I 5 of 5