Carol Tirado, Appellant, v Samuel Miller et al., Respondents. Travelers Insurance Company, Nonparty Respondent.
Supreme Court, Appellate Division, Second Department, New York
May 18, 2010
901 N.Y.S.2d 358
APPEARANCES OF COUNSEL
James J. Toomey, New York City (Evy L. Kazansky of counsel), for respondents.
OPINION OF THE COURT
Dillon, J.P.
We address on this appeal the question of whether a court may decide a motion upon grounds other than those argued by the parties in their submissions. We hold that a court may do so where, as here, the motion regards a nondispositive discovery issue decided upon procedural grounds, where the court takes judicial notice of a note of issue and its filing date, and where the court‘s grant or denial of relief is confined to the specific family of relief sought in the motion.
The timeline of the parties’ litigation is straightforward. On July 2, 2004 the plaintiff Carlo Tirado, an employee of a roofing supply company, allegedly sustained personal injuries as a result of a trip-and-fall upon a concrete walkway located on property owned by the defendants Samuel Miller and Miriam Miller. The
On May 16, 2005, prior to the commencement of this action, Mary Colon, an employee of the plaintiff‘s attorney, conversed by telephone with Richard Lombardo, a Travelers claim adjuster. According to Colon, Lombardo recounted a conversation he had with Miriam Miller, who denied that the plaintiff or his company had been present upon her property on the date of the alleged accident. On August 31, 2005 the plaintiff commenced this action by the filing of a summons and verified complaint. On May 24, 2006 Miriam Miller testified at her deposition that in 2005 she learned for the first time that someone had fallen on her property.
A note of issue and certificate of readiness were filed on February 7, 2008.1
In or about mid-June 2008 the plaintiff‘s counsel served upon Lombardo a subpoena duces tecum and ad testificandum, demanding stated portions of Travelers’ claim file and a deposition of Lombardo regarding his conversation(s) with Miriam Miller. According to the plaintiff‘s counsel, Miriam Miller‘s statements were inconsistent regarding her knowledge of the plaintiff‘s presence on the defendants’ property. While she first denied to Lombardo any knowledge of an accident on the property, she later testified at deposition that she had learned in 2005 that someone had fallen there. The plaintiffs contended that these inconsistencies raised an issue of fact regarding Miriam Miller‘s credibility and would be relevant at trial.
On July 7, 2008 the defendants and Travelers moved to quash the subpoena and for a protective order as to Travelers’ claim file and Lombardo‘s deposition testimony.2 They sought the requested relief upon two stated grounds. They argued, in the first instance, that the information sought by the plaintiff was privileged as attorney work product and as material prepared in anticipation of litigation. They also contended, in the second instance, that the information sought was not relevant or material
In the order appealed from dated July 31, 2008, the Supreme Court granted the motion, inter alia, to quash, but on a ground different than those argued by the defendants and Travelers. The Supreme Court noted that the “[n]on-party Subpoena‘s [sic] were Served postNote of Issue And [that] Discovery in the form of Nonparty [D]epositions Are [sic] Not Permitted Post-Note of Issue.”
On appeal, the plaintiff contends that the Supreme Court was without authority to decide the motion upon a ground that was not raised in the parties’ submissions and upon which the plaintiff had no opportunity to be heard. Alternatively, the plaintiff argues that the subpoenaed documents and testimony were nonprivileged and were otherwise discoverable. For reasons set forth below, we find that the Supreme Court properly determined that the plaintiff‘s effort to obtain discovery subsequent to the filing of a note of issue, under the circumstances presented, was untimely.
The purpose of a note of issue and certificate of readiness is to assure that cases which appear on the court‘s trial calendar are, in fact, ready for trial (see Mazzara v Town of Pittsford, 30 AD2d 634 [1968]).
A certificate of readiness certifies that all discovery is completed, waived, or not required and that the action is ready for trial (see
Discovery that is nevertheless sought after the filing of a note of issue and certificate of readiness is governed by a different set of procedural principles than discovery that is sought prior to the filing of a note of issue. Pre-note discovery includes disclosure of “all matter material and necessary in the prosecution or defense of an action” (see
Here, it is not contested that the note of issue and certificate of readiness were filed in February 2008. The note of issue was never stricken as a result of any motion filed within the 20-day deadline set forth in
We recognize that the trial court did not grant any unrequested relief, but rather, granted the specific relief sought by the defendants and Travelers in their motion of quashing the plaintiff‘s subpoena and, in effect, granting a protective order. On appeal, the plaintiff takes issue, inter alia, with the Supreme Court‘s having determined the motion on a ground unrelated to the privilege and relevance issues briefed by the parties. However, in rendering decisions on motions, trial courts are not
General relief clauses, for “such other, further, or different relief,” are often included in notices of motion by practitioners to cover the possibility that the appropriate relief is not what the movant has specifically asked for, “but is close enough to enable the court to grant it” (Siegel, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 7B, CPLR C2214:5). The presence of a general relief clause enables the court to grant relief that is not too dramatically unlike that which is actually sought, as long as the relief is supported by proof in the papers and the court is satisfied that no party is prejudiced (see Frankel v Stavsky, 40 AD3d 918 [2007]; HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774 [1991]; Lanaris v Mutual Benefit Life Ins. Co., 9 AD2d 1015 [1959]).
The relief granted, of quashing the plaintiff‘s subpoena and, in effect, granting a protective order, is not only similar, but in fact identical, to the ultimate relief demanded in the notice of motion, albeit on a different basis. We find that the general relief clause in the notice of motion permitted the court to consider an alternative ground for granting the motion, consistent with the ultimate relief that was requested, and which was based upon material contained in the court‘s own file (see Lammers v Lammers, 235 AD2d 286 [1997] [denial of plaintiff‘s motion for procedural reasons, but grant of the same relief by the court sua sponte, affirmed on appeal]).
In any event, there are circumstances, which we acknowledge, where trial courts may not order certain forms of relief without giving the parties an opportunity to be heard on the specifics. These circumstances are typically identified in statutes. For instance, a court may not treat a motion to dismiss as one for summary judgment without giving the parties adequate
By contrast, circumstances where a trial court may act sua sponte include a court reconsidering its own prior interlocutory orders during the pendency of an action under
The foregoing demonstrates that there are circumstances when courts may act sua sponte and others when courts may not do so. The telltale sign of the difference, for many but not all circumstances, is the enabling language of the relevant statutory provision pursuant to which the court acts.
The plaintiff argues that the Supreme Court acted sua sponte, and improperly, in quashing his subpoena based upon a reason not briefed by the parties. We disagree. There is a critical distinction between sua sponte relief not requested by any party, and sua sponte reasoning in granting or denying nondispositive discovery relief that has been requested by a party. Here, the relief granted by the court was the very relief that the defendants and Travelers requested in their notice of motion. Only the reasoning utilized by the court in determining the motion was different or unexpected, and that reasoning could be invoked pursuant to the general prayer for relief contained in the notice of motion.
No statute within the CPLR generally, or article 31 specifically, restricts a trial court‘s reasoning on any discovery issue only to arguments specifically set forth by the parties, beyond the general notice requirements of
Parties aggrieved by what they perceive as a court‘s faulty reasoning may move for leave to reargue (see
We find no authority that post-note of issue discovery of a nonparty should be treated any differently from party discovery. In Arons v Jutkowitz (9 NY3d 393 [2007]), the Court of Appeals examined the question of whether defense attorneys may permissibly engage in informal ex parte conversations with plaintiffs’ nonparty treating physicians, pursuant to authorizations compliant with the Health Insurance Portability and Accountability Act of 1996 (Pub L 104-191, 110 US Stat 1936 [1996]), in preparation for trial. Typically, such conversations occur post-note of issue (see Arons v Jutkowitz, 9 NY3d at 410). The Court of Appeals expressly permitted the physician interviews, noting that if a physician refuses to talk with an attorney after the notice of issue is filed, the attorney has no basis for judicial intervention absent “unusual and unanticipated circumstances” and “substantial prejudice” under
The parties’ remaining contentions either are without merit, are improperly raised for the first time on appeal, or have been rendered academic in light of our determination.
In light of the foregoing, the order is affirmed insofar as appealed from.
Eng, Belen and Hall, JJ., concur.
Ordered that the order is affirmed insofar as appealed from, with costs.