Cavaretta v. George

270 A.D.2d 862, 706 N.Y.S.2d 291, 2000 N.Y. App. Div. LEXIS 3488

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 2000
• Status: Published

Opinion

—Order unanimously reversed on the law without costs and motion granted in accordance with the following Memorandum: Steven J. Smith and Debra Smith (defendants) appeal from an order of Supreme Court denying their motion for the issuance of letters rogatory to conduct depositions upon written questions of three witnesses. Defendants established that those witnesses may have evidence “material and necessary” in the defense of the action (CPLR 3101 [a]; see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 407-408; Wiseman v American Motors Sales Corp., 103 AD2d 230, 239). The fact that defendants supported their motion by hearsay evidence does not preclude the relief sought (see, Wiseman v American Motors Sales Corp., supra, at 236-237). The mere showing by an attorney that a nonparty witness’s pretrial deposition is required to prepare fully for trial suffices as a “special circumstance” for purposes of applying the liberal discovery policy of the CPLR (Kenford Co. v County of Erie, 41 AD2d 586).

While the notice of motion refers both to the Province of Ontario and the State of Michigan, counsel’s affidavit in support of the motion seeks the issuance of letters rogatory for the depositions only in Ontario. Therefore, we reverse the order and grant the motion seeking the issuance of letters rogatory to conduct depositions upon written questions in the Province of Ontario, Canada. (Appeal from Order of Supreme Court, Erie County, LaMendola, J. — Discovery.) Present — Pigott, Jr., P. J., Wisner, Scudder and Lawton, JJ.