Nazario v. City of New York

27 A.D.3d 439, 810 N.Y.S.2d 342

Opinion

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated February 18, 2005, as granted that branch of her motion which was to compel the defendant City of New York to produce seven witnesses for examinations before trial only to the extent of directing that defendant to produce Officer Wein for an examination before trial.

Ordered that the order is affirmed insofar as appealed from, with costs.

To show that additional examinations before trial are necessary, the plaintiff is required to demonstrate “(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case” (Zollner v City of New York, 204 AD2d 626, 627 [1994]; see Uvaydova v New York Tel. Co., 226 AD2d 626, 627 [1996]). Under the circumstances of this case, the Supreme Court properly granted the plaintiff’s motion only to the extent of directing the defendant City of New York to produce Officer Wein for an examination before trial. Adams, J.P., Ritter, Goldstein, Skelos and Dillon, JJ., concur.