Preview
FILED: NEW YORK COUNTY CLERK 06/19/2019 02:50 PM INDEX NO. 653025/2014
NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/19/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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) Index No.653025/2014
ADOLFO PITTALUGA SHAW, )
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Plaintiff, )
)
)
-against- )
)
)
)
ABBAS SHAH and SARA SYED, )
)
)
Defendants. )
)
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MEMORANDUM OF LAW
IN SUPPORT OF PLAINTIFF’S MOTION
Gleason & Koatz, LLP
122 East 42nd Street
New York, New York 10168
Tel: (212) 986-1544
Attorneys for Plaintiff
John P. Gleason, of counsel and on the Brief
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Plaintiff Adolfo Pittaluga Shaw (“Plaintiff”) respectfully submits this
Memorandum of Law in support of his motion (the “Motion”) seeking an Order (i)
to lift the Note of Issue filed in this matter temporarily in order to permit Plaintiff
to take the deposition of defendants Sara Syed (“Sara”) and Abbas Shah (“Abbas”
and with Sara collectively, the “Defendants”) and (ii) for such other and related
relief as the Court deems just and proper.
PRELIMINARY STATEMENT
Plaintiff commenced this action on October 3, 2014, seeking to recover
$399,624.00 (exclusive of pre-judgment interest and costs) due and owing to
Plaintiff by Defendants. (Doc. No. 1).
Defendants solicited Plaintiff, who is an attorney and trusted
friend of Defendants, to invest in a purported fund in long-term securities. (See:
Doc. No. 23, Affidavit of Pittaluga ¶8-31).
Defendants made a number of materially false statements and omissions to
Plaintiff. Defendants misrepresented to Plaintiff that his money would be placed in
a trust. (Id. ¶19). In truth, there was no trust or other investment vehicle and
Defendants never invested Plaintiff’s money in bonds or other securities. (I d. ¶22).
No part of the amount of $399,624.00 has been re-paid to Plaintiff (other than
$60,000.00), despite repeated demands for payment. Defendants have communicated
their intention not to pay the amount to Plaintiff. (See: Id. ¶30).
Defendants misappropriated the money Plaintiff delivered to Defendants.
Defendants owe to Plaintiff the sum of $399,624.00. (See: I d . ¶31).
Plaintiff commenced this action on October 3, 2014 by filing the
Summons and Complaint (Doc. No. 1). Defendants were served with process
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on October 20, 2014. (Doc. No. 2).
Defendants defaulted. Plaintiff moved for the entry of default on
January 5, 015. (Doc. No. 3).
By order dated March 14, 2016, Justice Robert R. Reed ordered the
Clerk to enter judgement in favor of Plaintiff and against defendants in the
amount of $399,624.00 plus interest from June 10, 2014 together with costs
and disbursements as taxed by the Clerk. (Doc. No. 25).
The Clerk entered judgement accordingly on August 3, 2016. (Doc. No.
29).
On November 3, 2016, defendants sought, via Order to Show Cause, to
vacate the default and judgement. (Doc. No. 30). The Court signed the order
on November 3, 2016. (Doc. No. 43) vacating default. It also scheduled a
preliminary conference for February 23, 2017. (Doc. No. 47).
On December 23, 2016, Plaintiff served a notice of deposition upon
defendants for February 8, 2017. (Doc. No. 51).
The Court, by order dated February 23, 2017 (Doc. No. 56), ordered
that depositions of each party shall be held, and scheduled a compliance
conference for May 11, 2017 at 11 o’clock.
Defendants failed to appear for the February 8, 2017 deposition. As a
result, Plaintiff filed a motion on April 19, 2017 asking the Court to strike
defendants’ answer due to defendants’ willful failure to appear for deposition
on February 8. (Doc. No. 61).
The motion was resolved by a so-ordered stipulation, which withdrew
the motion to strike defendants’ answer, and re-scheduled the deposition of
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defendants to on or before June 29, 2017. (Doc. No. 64).
Despite this order, defendants failed to appear for deposition on or
before June 29, 2017.
Thereafter, defendants, on June 14, 2018, filed a motion asking the
court for an order “Vacating/Striking the prematurely filed Note of
Issue…dated May 25, 2018” (Doc. No. 82 et seq.).
The Court issued a stipulated order on July 12, 2018, stating that “In
light of the pending motion to vacate the NOI, the status conference is
adjourned to 8/16/18 @ 11:00 am”. (Doc. No. 93).
On August 27, 2018, the Court denied defendants’ motion to vacate
the note of issue. (Doc. No. 94).
On December 1, 2018, defendants moved seeking leave to reargue the
August 27, 2018 order denying defendants’ motion to vacate the note of issue.
(Doc. No. 96).
By decision and order dated April 8, 2019, the Court granted leave to
reargue defendants’ motion to vacate the note of issue and, upon
reargument, “…the Court adheres to its Decision and Order [of] August 27,
2018, denying said motion to vacate the note of issue…but the defendant
shall be permitted to take a deposition of plaintiff provided that the
deposition is completed within 45 days from service of a copy of this order
with notice of entry…” (Doc. No. 116).
Defendant took a deposition of Plaintiff on June 13, 2019. (See:
Exhibit B to Gleason affirmation).
Plaintiff served upon defendant a deposition notice. However, in
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response to the request to depose defendant, its attorney wrote on June 17,
2019, that he would not produce defendants for deposition because “within
the Note of Issue, your client represented all discovery was complete.” (see:
Exhibit to Gleason affirmation; Brian Kimmel June 17, 2019 email).
Despite the deposition notice served timely upon defendants, they have not
presented themselves for deposition. Nor have defendants offered any reason that
being deposed would be a serious hardship for them. Nor have defendants sought a
protective order. Counsel for defendants did not acknowledge the Notice nor did
counsel object to it in any manner.
On April 17, 2017, Plaintiff emailed counsel for defendants referring to the
Notice and asking counsel to confirm that defendant Abbas Shah would appear on
April 19, 2017. Counsel did not respond to this email.
On April 18, 2017 at 6:31 a.m. (a day before the deposition), Plaintiff wrote
again to counsel asking confirmation that Mr. Shah would appear as scheduled.
Counsel did not respond to the April 18 email until 12:38 p.m., April 18,
apologizing for his delay and alleging, “things have been crazy in general and made
worse by the holidays. I need to reschedule the deposition to allow for time to
adequately prepare my client for an EBT”.
Plaintiff responded the same day (at 1:42 p.m.) telling counsel that he failed to
state a reason for rescheduling the deposition despite knowing about it since March 9,
2017.
Moreover, on March 8, 2017, counsel was served with a (i) request for the
production of documents, and (ii) interrogatories. Despite having more than a month
to respond, neither counsel nor his client has objected to the discovery requests,
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sought an extension of time or answered them.
LEGAL ARGUMENT
A. Statutory Authority Permits Discovery Extensions
CPLR 3101 requires full disclosure of all nonprivileged matter which is
material and necessary to the defense or prosecution of an action.
To this end, trial courts have broad discretion in the supervision of discovery,
and in determining what is "material and necessary" (see Allen v Crowell-Collier
Publ. Co., 21 NY2d 403 [1968]; Andon v 302-304 Mott St. Assoc., 94 NY2d 740
[2000]; Cabellero v City of New York, 48 AD3d 727 [2d Dept 2008]).
Within the context of discovery, "necessary" is interpreted as meaning
"`needful' and not indispensable" (see Allen at 407). The "material and necessary"
standard is to be interpreted liberally, requiring disclosure of "any facts bearing on
the controversy which will assist preparation for trial by sharpening the issues and
reducing delay and prolixity. The test is one of usefulness and reason" (see Allen, 21
NY2d at 406; Andon, supra; Hoenig v Westphal, 52 NY2d 605, 608 [1981] [pretrial
discovery is to be encouraged, limited only by a test for materiality of "usefulness and
reason"]).
C.P.L.R. §3104(a) grants New York Courts authority to supervise all or part of
any disclosure procedure. This broad power permits the Court to extend discovery
deadlines. Di Giovanni v. Pepsico, Inc., 502 NYS 2d 23, 1st Dep’t 1986.
22 NYCRR 202.21(e) grants the Court authority to vacate a note of issue when
the case is not ready for trial.
This case is not ready for trial because Plaintiff, without fault, has not had the
opportunity to take the depositions of defendant.
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Although some laws require the motion to vacate to be made within 20 days of
its filing, this is not the case here. When unusual or unanticipated circumstances
occur in a case, such as here, the rule is relaxed.
Plaintiff served defendant with a deposition notice. Plaintiff wrote to counsel on
April 17, 2017, reminding counsel he had reserved a court reporter for the April 19,
2017 deposition. Despite the reminder, neither defendant nor his counsel appeared for
deposition on April 19, 2017 (thus costing plaintiff money to pay for the reporter’s
appearance).
Discovery was requested before the note of issue was filed. The occurrence
preventing plaintiff from taking the deposition occurred after the note of issue and
was beyond the control of plaintiff. Philpott v. Bernales, 762 N.Y.S 2d 771 (App. Div.
2nd Dep’t, 2003).
Plaintiff made a good faith effort to depose defendant – going so far as securing
a court reporter who came to counsel’s office – and paying the court reporter’s fee for
appearing. (see: Exhibit B to Gleason affirmation).
Each discovery request is to be decided on a case-by-case basis, keeping in mind
the strong public policy in favor of open disclosure (see Andon at 747). If the
information sought is sufficiently related to the issues in litigation to make the effort
to obtain it in preparation for trial reasonable, then discovery should be permitted
(see Allen at 406-407; Matter of Beryl, 118 AD2d 705 [2d Dept 1986]).
B. Broad Discretion to Grant Disclosure
Courts have broad discretion in granting disclosure (see, e.g., Matter
of Pyramid Mgt. Group v Board of Assessors, 243 AD2d 876; Matter of Xerox Corp. v
Duminuco [appeal No. 1], 216 AD2d 950), although they must balance the needs of
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the party seeking discovery against such opposing interests as expedition and
confidentiality (see, 3 Weinstein-Korn-Miller, NY Civ Prac ¶ 408.01).
No balancing act need be performed here. Confidentiality is absent. Expedition
is not an issue. Defendants make no complaint about the pace of this litigation.
Plaintiff is a resident and citizen of Uruguay but has nevertheless prosecuted his case
in a reasonably timely manner.
Defendants have not claimed that providing the requested discovery would be
prejudicial or unduly burdensome, would violate confidentiality or would unduly delay
the case.
Defendants resist being deposed on the sole ground that the note of issue filed
exonerates them from being deposed.
In the absence of such contravening interests, any discovery that is relevant to
the controversy at issue qualifies as material and necessary and should be
allowed. 860 Executive Towers v Board of Assessors, 53 AD2d 463, 474, affd sub
nom. Matter of Pellaton Apts. v Board of Assessors, 43 N.Y.2d 769); Pleasant Valley v.
New York State Board of Real Property Services, 685 N.Y.S. 2d 74 (1999).
C. Defendants Deposed Plaintiff Post Note of Issue
Defendants deposed plaintiff on June 13, 2019, following the April 8, 2019
Decision and Order of Justice Robert R. Reed who ordered, post note of issue, that
defendant “shall be permitted to take a deposition of plaintiff provided that the
deposition is completed within 45 days from service of a copy of this order...”
Service of the order was made April 11, 2019. 45 days from that date was May
27, 2019 (May 26 was a Sunday).
Despite the April 8 Decision and Order requiring defendants to depose plaintiff
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by May 27, 2019, and without seeking leave of Court, defendants demanded that they
depose plaintiff on June 13, 2019. In order to cooperate and not burden the Court
needlessly, plaintiff consented to being deposed June 13, 2019.
When plaintiff sought to take a deposition of defendants, counsel declined to
produce them relying on the note of issue plaintiff filed as his excuse.
These circumstances satisfy the more stringent requirement of 22 NYCRR
202.21 (d), requiring "unusual or unanticipated circumstances and substantial
prejudice" absent the additional discovery (Audiovox Corp. v Benyamini, 265 AD2d at
138; see Schroeder v IESI NY Corp., 24 AD3d 180, 181 [2005]; Aviles v 938 SCY
Ltd., 283 AD2d 935, 936 [2001]; Tirado v. Miller, 75 A.D. 3d 153 (2010 – App. Div. 2nd
Dep’t).
Plaintiff would be prejudiced absent the additional discovery of taking a
deposition of defendants. Depositions were invented to allow parties to prepare
intelligently for trial – or reach settlement after full knowledge of the facts. Without
taking defendants’ depositions, Plaintiff walks into the courtroom blind.
Unusual circumstances include that defendants were able to depose plaintiff
while defendants had full access to depose Plaintiff. This runs counter to the concept
of full disclosure before trial. It would be unfair if plaintiff were denied the same
opportunity defendants enjoyed.
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CONCLUSION
For the reasons set forth herein, Plaintiff respectfully requests an order
granting plaintiff leave to depose defendants in an expeditious
manner.
Dated: June 19, 2019
New York, New York
GLEASON & KOATZ, LLP
By: /s/ John P. Gleason
John P. Gleason
Gleason & Koatz, LLP
122 East 42nd Street
New York, New York 10168
(212) 986-1544
jgleason@gleasonkoatz.com
Attorneys for Plaintiff
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Preview
FILED: NEW YORK COUNTY CLERK 06/19/2019 02:50 PM INDEX NO. 653025/2014 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/19/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------ X ) Index No.653025/2014 ADOLFO PITTALUGA SHAW, ) ) Plaintiff, ) ) ) -against- ) ) ) ) ABBAS SHAH and SARA SYED, ) ) ) Defendants. ) ) -------------------------------------------------------- X MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION Gleason & Koatz, LLP 122 East 42nd Street New York, New York 10168 Tel: (212) 986-1544 Attorneys for Plaintiff John P. Gleason, of counsel and on the Brief 1 1 of 10 FILED: NEW YORK COUNTY CLERK 06/19/2019 02:50 PM INDEX NO. 653025/2014 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/19/2019 Plaintiff Adolfo Pittaluga Shaw (“Plaintiff”) respectfully submits this Memorandum of Law in support of his motion (the “Motion”) seeking an Order (i) to lift the Note of Issue filed in this matter temporarily in order to permit Plaintiff to take the deposition of defendants Sara Syed (“Sara”) and Abbas Shah (“Abbas” and with Sara collectively, the “Defendants”) and (ii) for such other and related relief as the Court deems just and proper. PRELIMINARY STATEMENT Plaintiff commenced this action on October 3, 2014, seeking to recover $399,624.00 (exclusive of pre-judgment interest and costs) due and owing to Plaintiff by Defendants. (Doc. No. 1). Defendants solicited Plaintiff, who is an attorney and trusted friend of Defendants, to invest in a purported fund in long-term securities. (See: Doc. No. 23, Affidavit of Pittaluga ¶8-31). Defendants made a number of materially false statements and omissions to Plaintiff. Defendants misrepresented to Plaintiff that his money would be placed in a trust. (Id. ¶19). In truth, there was no trust or other investment vehicle and Defendants never invested Plaintiff’s money in bonds or other securities. (I d. ¶22). No part of the amount of $399,624.00 has been re-paid to Plaintiff (other than $60,000.00), despite repeated demands for payment. Defendants have communicated their intention not to pay the amount to Plaintiff. (See: Id. ¶30). Defendants misappropriated the money Plaintiff delivered to Defendants. Defendants owe to Plaintiff the sum of $399,624.00. (See: I d . ¶31). Plaintiff commenced this action on October 3, 2014 by filing the Summons and Complaint (Doc. No. 1). Defendants were served with process 2 2 of 10 FILED: NEW YORK COUNTY CLERK 06/19/2019 02:50 PM INDEX NO. 653025/2014 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/19/2019 on October 20, 2014. (Doc. No. 2). Defendants defaulted. Plaintiff moved for the entry of default on January 5, 015. (Doc. No. 3). By order dated March 14, 2016, Justice Robert R. Reed ordered the Clerk to enter judgement in favor of Plaintiff and against defendants in the amount of $399,624.00 plus interest from June 10, 2014 together with costs and disbursements as taxed by the Clerk. (Doc. No. 25). The Clerk entered judgement accordingly on August 3, 2016. (Doc. No. 29). On November 3, 2016, defendants sought, via Order to Show Cause, to vacate the default and judgement. (Doc. No. 30). The Court signed the order on November 3, 2016. (Doc. No. 43) vacating default. It also scheduled a preliminary conference for February 23, 2017. (Doc. No. 47). On December 23, 2016, Plaintiff served a notice of deposition upon defendants for February 8, 2017. (Doc. No. 51). The Court, by order dated February 23, 2017 (Doc. No. 56), ordered that depositions of each party shall be held, and scheduled a compliance conference for May 11, 2017 at 11 o’clock. Defendants failed to appear for the February 8, 2017 deposition. As a result, Plaintiff filed a motion on April 19, 2017 asking the Court to strike defendants’ answer due to defendants’ willful failure to appear for deposition on February 8. (Doc. No. 61). The motion was resolved by a so-ordered stipulation, which withdrew the motion to strike defendants’ answer, and re-scheduled the deposition of 3 3 of 10 FILED: NEW YORK COUNTY CLERK 06/19/2019 02:50 PM INDEX NO. 653025/2014 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/19/2019 defendants to on or before June 29, 2017. (Doc. No. 64). Despite this order, defendants failed to appear for deposition on or before June 29, 2017. Thereafter, defendants, on June 14, 2018, filed a motion asking the court for an order “Vacating/Striking the prematurely filed Note of Issue…dated May 25, 2018” (Doc. No. 82 et seq.). The Court issued a stipulated order on July 12, 2018, stating that “In light of the pending motion to vacate the NOI, the status conference is adjourned to 8/16/18 @ 11:00 am”. (Doc. No. 93). On August 27, 2018, the Court denied defendants’ motion to vacate the note of issue. (Doc. No. 94). On December 1, 2018, defendants moved seeking leave to reargue the August 27, 2018 order denying defendants’ motion to vacate the note of issue. (Doc. No. 96). By decision and order dated April 8, 2019, the Court granted leave to reargue defendants’ motion to vacate the note of issue and, upon reargument, “…the Court adheres to its Decision and Order [of] August 27, 2018, denying said motion to vacate the note of issue…but the defendant shall be permitted to take a deposition of plaintiff provided that the deposition is completed within 45 days from service of a copy of this order with notice of entry…” (Doc. No. 116). Defendant took a deposition of Plaintiff on June 13, 2019. (See: Exhibit B to Gleason affirmation). Plaintiff served upon defendant a deposition notice. However, in 4 4 of 10 FILED: NEW YORK COUNTY CLERK 06/19/2019 02:50 PM INDEX NO. 653025/2014 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/19/2019 response to the request to depose defendant, its attorney wrote on June 17, 2019, that he would not produce defendants for deposition because “within the Note of Issue, your client represented all discovery was complete.” (see: Exhibit to Gleason affirmation; Brian Kimmel June 17, 2019 email). Despite the deposition notice served timely upon defendants, they have not presented themselves for deposition. Nor have defendants offered any reason that being deposed would be a serious hardship for them. Nor have defendants sought a protective order. Counsel for defendants did not acknowledge the Notice nor did counsel object to it in any manner. On April 17, 2017, Plaintiff emailed counsel for defendants referring to the Notice and asking counsel to confirm that defendant Abbas Shah would appear on April 19, 2017. Counsel did not respond to this email. On April 18, 2017 at 6:31 a.m. (a day before the deposition), Plaintiff wrote again to counsel asking confirmation that Mr. Shah would appear as scheduled. Counsel did not respond to the April 18 email until 12:38 p.m., April 18, apologizing for his delay and alleging, “things have been crazy in general and made worse by the holidays. I need to reschedule the deposition to allow for time to adequately prepare my client for an EBT”. Plaintiff responded the same day (at 1:42 p.m.) telling counsel that he failed to state a reason for rescheduling the deposition despite knowing about it since March 9, 2017. Moreover, on March 8, 2017, counsel was served with a (i) request for the production of documents, and (ii) interrogatories. Despite having more than a month to respond, neither counsel nor his client has objected to the discovery requests, 5 5 of 10 FILED: NEW YORK COUNTY CLERK 06/19/2019 02:50 PM INDEX NO. 653025/2014 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/19/2019 sought an extension of time or answered them. LEGAL ARGUMENT A. Statutory Authority Permits Discovery Extensions CPLR 3101 requires full disclosure of all nonprivileged matter which is material and necessary to the defense or prosecution of an action. To this end, trial courts have broad discretion in the supervision of discovery, and in determining what is "material and necessary" (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]; Andon v 302-304 Mott St. Assoc., 94 NY2d 740 [2000]; Cabellero v City of New York, 48 AD3d 727 [2d Dept 2008]). Within the context of discovery, "necessary" is interpreted as meaning "`needful' and not indispensable" (see Allen at 407). The "material and necessary" standard is to be interpreted liberally, requiring disclosure of "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (see Allen, 21 NY2d at 406; Andon, supra; Hoenig v Westphal, 52 NY2d 605, 608 [1981] [pretrial discovery is to be encouraged, limited only by a test for materiality of "usefulness and reason"]). C.P.L.R. §3104(a) grants New York Courts authority to supervise all or part of any disclosure procedure. This broad power permits the Court to extend discovery deadlines. Di Giovanni v. Pepsico, Inc., 502 NYS 2d 23, 1st Dep’t 1986. 22 NYCRR 202.21(e) grants the Court authority to vacate a note of issue when the case is not ready for trial. This case is not ready for trial because Plaintiff, without fault, has not had the opportunity to take the depositions of defendant. 6 6 of 10 FILED: NEW YORK COUNTY CLERK 06/19/2019 02:50 PM INDEX NO. 653025/2014 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/19/2019 Although some laws require the motion to vacate to be made within 20 days of its filing, this is not the case here. When unusual or unanticipated circumstances occur in a case, such as here, the rule is relaxed. Plaintiff served defendant with a deposition notice. Plaintiff wrote to counsel on April 17, 2017, reminding counsel he had reserved a court reporter for the April 19, 2017 deposition. Despite the reminder, neither defendant nor his counsel appeared for deposition on April 19, 2017 (thus costing plaintiff money to pay for the reporter’s appearance). Discovery was requested before the note of issue was filed. The occurrence preventing plaintiff from taking the deposition occurred after the note of issue and was beyond the control of plaintiff. Philpott v. Bernales, 762 N.Y.S 2d 771 (App. Div. 2nd Dep’t, 2003). Plaintiff made a good faith effort to depose defendant – going so far as securing a court reporter who came to counsel’s office – and paying the court reporter’s fee for appearing. (see: Exhibit B to Gleason affirmation). Each discovery request is to be decided on a case-by-case basis, keeping in mind the strong public policy in favor of open disclosure (see Andon at 747). If the information sought is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable, then discovery should be permitted (see Allen at 406-407; Matter of Beryl, 118 AD2d 705 [2d Dept 1986]). B. Broad Discretion to Grant Disclosure Courts have broad discretion in granting disclosure (see, e.g., Matter of Pyramid Mgt. Group v Board of Assessors, 243 AD2d 876; Matter of Xerox Corp. v Duminuco [appeal No. 1], 216 AD2d 950), although they must balance the needs of 7 7 of 10 FILED: NEW YORK COUNTY CLERK 06/19/2019 02:50 PM INDEX NO. 653025/2014 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/19/2019 the party seeking discovery against such opposing interests as expedition and confidentiality (see, 3 Weinstein-Korn-Miller, NY Civ Prac ¶ 408.01). No balancing act need be performed here. Confidentiality is absent. Expedition is not an issue. Defendants make no complaint about the pace of this litigation. Plaintiff is a resident and citizen of Uruguay but has nevertheless prosecuted his case in a reasonably timely manner. Defendants have not claimed that providing the requested discovery would be prejudicial or unduly burdensome, would violate confidentiality or would unduly delay the case. Defendants resist being deposed on the sole ground that the note of issue filed exonerates them from being deposed. In the absence of such contravening interests, any discovery that is relevant to the controversy at issue qualifies as material and necessary and should be allowed. 860 Executive Towers v Board of Assessors, 53 AD2d 463, 474, affd sub nom. Matter of Pellaton Apts. v Board of Assessors, 43 N.Y.2d 769); Pleasant Valley v. New York State Board of Real Property Services, 685 N.Y.S. 2d 74 (1999). C. Defendants Deposed Plaintiff Post Note of Issue Defendants deposed plaintiff on June 13, 2019, following the April 8, 2019 Decision and Order of Justice Robert R. Reed who ordered, post note of issue, that defendant “shall be permitted to take a deposition of plaintiff provided that the deposition is completed within 45 days from service of a copy of this order...” Service of the order was made April 11, 2019. 45 days from that date was May 27, 2019 (May 26 was a Sunday). Despite the April 8 Decision and Order requiring defendants to depose plaintiff 8 8 of 10 FILED: NEW YORK COUNTY CLERK 06/19/2019 02:50 PM INDEX NO. 653025/2014 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/19/2019 by May 27, 2019, and without seeking leave of Court, defendants demanded that they depose plaintiff on June 13, 2019. In order to cooperate and not burden the Court needlessly, plaintiff consented to being deposed June 13, 2019. When plaintiff sought to take a deposition of defendants, counsel declined to produce them relying on the note of issue plaintiff filed as his excuse. These circumstances satisfy the more stringent requirement of 22 NYCRR 202.21 (d), requiring "unusual or unanticipated circumstances and substantial prejudice" absent the additional discovery (Audiovox Corp. v Benyamini, 265 AD2d at 138; see Schroeder v IESI NY Corp., 24 AD3d 180, 181 [2005]; Aviles v 938 SCY Ltd., 283 AD2d 935, 936 [2001]; Tirado v. Miller, 75 A.D. 3d 153 (2010 – App. Div. 2nd Dep’t). Plaintiff would be prejudiced absent the additional discovery of taking a deposition of defendants. Depositions were invented to allow parties to prepare intelligently for trial – or reach settlement after full knowledge of the facts. Without taking defendants’ depositions, Plaintiff walks into the courtroom blind. Unusual circumstances include that defendants were able to depose plaintiff while defendants had full access to depose Plaintiff. This runs counter to the concept of full disclosure before trial. It would be unfair if plaintiff were denied the same opportunity defendants enjoyed. 9 9 of 10 FILED: NEW YORK COUNTY CLERK 06/19/2019 02:50 PM INDEX NO. 653025/2014 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 06/19/2019 CONCLUSION For the reasons set forth herein, Plaintiff respectfully requests an order granting plaintiff leave to depose defendants in an expeditious manner. Dated: June 19, 2019 New York, New York GLEASON & KOATZ, LLP By: /s/ John P. Gleason John P. Gleason Gleason & Koatz, LLP 122 East 42nd Street New York, New York 10168 (212) 986-1544 jgleason@gleasonkoatz.com Attorneys for Plaintiff 10 10 of 10