Woods v. Daniella Realty Corp.

15 A.D.3d 231, 789 N.Y.S.2d 479, 2005 N.Y. App. Div. LEXIS 1472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2005
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Anne E. Targum, J.), entered June 11, 2003, which, inter alia, granted plaintiffs motion for leave to conduct a post note of issue deposition of a nonparty witness, and order, same court and Justice, entered April 2, 2004, which denied the motion of defendant Daniella Realty Corp. for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The grant of plaintiffs motion to conduct a post note of issue deposition of a nonparty witness did not, under the circumstances, constitute an improvident exercise of the motion court’s broad discretion to supervise discovery-related matters (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223 [2003]).

Given the numerous vagaries in the testimony of the moving defendant’s principal and the lack of documentation to support that defendant’s essential claim that it was an out-of-possession landlord without control over the subject premises, the motion for summary judgment was properly denied (see Kreimer v Rockefeller Group, Inc., 2 AD3d 407 [2003]). Concur — Buckley, EJ., Marlow, Ellerin and Catterson, JJ.