Bennett v. Riverbay Corp.

40 A.D.3d 319, 833 N.Y.S.2d 896

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2007
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about May 5, 2006, which denied plaintiffs motion for disclosure sanctions, unanimously affirmed, without costs.

Plaintiff represents that the parties’ depositions were scheduled for January 12, 2006, and argues that defendants’ willful failure to produce witnesses deprived him of his right to deposition priority. Defendants do not deny the scheduling of all depositions for January 12, represent that plaintiffs deposition did not conclude until 4:00 p.m., and argue that “[a]ccordingly, no defendant witnesses were produced on that day.” Absent a showing of special circumstances substantiating plaintiffs claim of priority (see CPLR 3106 [a]; Bucci v Lydon, 116 AD2d 520, 521 [1986] [priority of deposition generally belongs to the defendant]), we cannot say that defendants’ failure to produce witnesses on January 12 is sanctionable (see Acevedo v Yuen-Fat Chan, 289 AD2d 10 [2001]). We have considered plaintiffs other claims of defendants’ noncompliance with disclosure obligations and find them without merit. Concur—Friedman, J.P., Marlow, Williams, Buckley and McGuire, JJ.