Frybergh v. Kouffman

119 A.D.2d 541, 500 N.Y.S.2d 552, 1986 N.Y. App. Div. LEXIS 55470

Opinion

— In an action to recover salaries and real estate brokerage commissions, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Corso, J.), dated September 4, 1984, as granted the defendant Kouffman’s motion for a protective order from notices to take oral depositions and denied his cross motion for summary judgment.

Order modified, by denying the motion for a protective order. As so modified, order affirmed, insofar as appealed from.

The respondents are awarded one bill of costs.

The plaintiff may depose the defendant Kouffman’s attorney and other nonparty witnesses only if he complies with CPLR 3106 (b), by serving a subpoena on the nonparty witnesses. The plaintiff’s failure to comply with the proper statutory procedure excuses the witnesses’ failure to appear for examination and justifies the denial of the plaintiff’s cross motion for summary judgment.

The plaintiff has a good-faith basis for seeking to depose the defendant Kouffman’s attorney, and thus, the motion for a protective order should have been denied. The plaintiff may depose the attorney upon compliance with proper procedures (CPLR 3106 [b]). Lazer, J. P., Thompson, Bracken and Rubin, JJ., concur.