Salmon v. RCP Associates

243 A.D.2d 314, 663 N.Y.S.2d 38, 1997 N.Y. App. Div. LEXIS 9835

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 14, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about January 28, 1997, which, insofar as appealed from and appealable, granted third-party plaintiff’s motion for disclosure sanctions against third-party defendant to the extent of directing third-party defendant to produce a former employee, who had been produced as its deponent pursuant to a nonparty deposition subpoena prior to its joinder as a party, for a continued deposition on all relevant matters, unanimously affirmed, with costs.

Third-party defendant claims that insofar as the motion court’s order directs that the witness it had produced under subpoena while still a nonparty now testify as to all relevant matters, rather than those limited to the third-party notice and subpoena, its effect is to grant third-party plaintiff a priority in the order of pretrial depositions and to deny third-party defendant its right to designate the deponent in the first instance. If this be the effect, there are justifying special circumstances, namely, the uncertain nature of the affiliation between third-party defendant and the defendant that served the nonparty deposition subpoena, third-party defendant’s stipulation to continue the deponent’s deposition after it had become aware of the filing of the third-party complaint, and third-party defendant’s failure to serve third-party plaintiff with a deposition notice until after the latter had made the instant motion for sanctions. To the extent third-party defendant seeks to appeal rulings on its objections at the deposition, such rulings are not appealable as of right, and we decline to grant leave to appeal (see, Tommy Hilfiger U.S.A. v Insurance Co., 239 AD2d 255). We have considered third-party defendant’s other arguments and find them to be without merit. Concur— Milonas, J. P., Wallach, Williams, Tom and Mazzarelli, JJ.