Grau v. St. John's University

168 A.D.2d 303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about March 14, 1990, denying defendants’ motion, pursuant to CPLR 3122, for a protective order, unanimously affirmed, without costs.

In this breach of contract action for a finder’s fee, plaintiffs served and filed separate notices to depose defendant Healy and defendant St. John’s by Father Joseph T. Cahill. Subsequent to Healy’s deposition, plaintiffs filed a renewed notice seeking to depose Father Cahill. The record supports the view that plaintiffs could properly designate the party to be deposed on behalf of defendant University, since deponent Healy’s testimony was obtained in his individual capacity as a defendant and was inadequate to address whether defendant University had, in fact, agreed to pay plaintiffs a finder’s fee. As between the two, Healy admitted that only Father Cahill had been privy to board determinations of defendant University. Under these circumstances, defendants have not met their burden of demonstrating that the person designated by plaintiffs lacks the knowledge needed for the deposition and defendant University has failed to substitute any other person with such knowledge, pursuant to CPLR 3106 (d). Concur— Kupferman, J. P., Sullivan, Milonas, Rosenberger and Kassal, JJ.