White v. Martins

100 A.D.2d 805, 474 N.Y.S.2d 733, 1984 N.Y. App. Div. LEXIS 17911

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 1984
• Status: Published

Opinions

Order, Supreme Court, New York County (Seymour Schwartz, J.), entered November 4, 1983 disposing of applications of defendant Zumbach and of plaintiff White with respect to disclosure relief, is modified, on the law and the facts, and in the exercise of discretion, to the extent that this court strikes the directions that defendant Zumbach shall answer all questions put to its witness by plaintiff White and the other parties (at future sessions of the deposition) with all objections as to form or on any other ground to be reserved for the trial court, and that plaintiff White shall be permitted to ask again all questions previously asked which were objected to, and which Zumbach’s witness was directed not to answer;, and the matter is remanded to Special Term to rule either now or at the close of the examination on objections to questions previously asked, and the order is otherwise affirmed, without costs. K It was improper to direct prospectively that all questions to be asked in the future be answered, reserving objections for the trial court, without knowing what those questions may be. It is true that the scope of examination on deposition is broader than what may be admissible on trial. (See Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406; Prink v Rockefeller Center, 48 NY2d 309, 314, n 1.) In general the proper procedure is to permit the witness to answer all questions subject to objections in accordance with CPLR 3115; the statute contemplates that “the deposition shall proceed subject to the right of a person to apply for a protective order. The deposition shall be taken continuously” (CPLR 3113, subd [b]; see, also, Spatz v Wide World Travel Serv., 70 AD2d 835). But there is always the possibility of questions that infringe upon a privilege, or that are so improper that to answer them will substantially prejudice the parties; or questions that may be so palpably and grossly irrelevant or unduly burdensome that they should not be answered. (Ferraro v New York Tel. Co., 94 AD2d 784; Watson v State of New York, 53 AD2d 798.) Thus, although the statute provides that the deposition shall proceed, it adds “subject to the right of a person to apply for a protective order.” (CPLR 3113, subd [b].) (Such a protective order may be obtained either by formal motion or by informal application for a ruling to the Justice designated to make such rulings.) 11 The order appealed from, by unconditionally directing the answering of all questions prospectively without knowing what those questions will be, deprives the party deposed of the right to apply for a protective order. H Finally, on this point, we note that our system of unsupervised deposition is dependent on the good-faith obligation of attorneys to comply with the spirit as well as the letter of the statute and procedure, and not to make objections which are merely obstructive, or to direct the witness not to answer questions objected to when there will be no substantial prejudice in permitting the question to be answered, reserving the objection pursuant to CPLR 3115. We do not exclude the possibility of appropriate sanctions in the event of sufficiently obstructive behavior. H Defendant-appellant Zumbach had made some 43 objections to questions already asked. Special Term in essence declined to rule on the merits of these objections, merely directing, in accordance with the procedure it had directed as to future questions, that plaintiff should be permitted to ask again all questions previously asked which were objected to and which Zumbach’s witness was directed not to answer. Objectant is entitled to rulings based upon the particular questions asked and the objections thereto; these rulings may be either on the merits of the objections, or on consideration of the particular questions and objections, that the defendant answer the questions reserving the objections for the trial court on the ground that there will be no substantial prejudice in answering the questions subject to such objections. We make no direction as to whether Special Term must rule on these 43 objections at this time, or whether it can wait until some later point or the completion of the examination and then rule on these objections along with future objections, f We have previously ruled that where Special Term fails to rule on objections on a deposition, we should make the rulings. (Greenleigh Assoc, v New York Post Corp., 79 AD2d 588; Blitz v Guardian Life Ins. Co., 99 AD2d 404.) But we think this is only practical where there are only a few substantive points involved; we think it is impractical and a wasteful use of judicial effort for five Judges of an appellate court to have to rule on 43 or more detailed objections to particular questions; it is wiser for one Special Term Justice to make such rulings. I Except for the directions which we have modified, the parties have not argued that any other part of the order appealed from is improper or requires correction. Concur — Sandler, Silverman and Milonas, JJ.