Discovery mid-trial (CPLR 3102(d), law of the case, and willful refusal

Matter of Michael R. v Amanda R., 2019 NY Slip Op 06454 [2d Dept. 2019]

A party may seek additional disclosure after trial commences only by permission of the trial court on notice (CPLR 3102[d]). Here, the father never sought permission for posttrial discovery. Nor do the father’s motion papers demonstrate any reason why he should have been permitted to pursue additional discovery more than a year after trial commenced. In view of this, and the fact that the mother faced contempt penalties if she were unable to present evidence about her ability to pay, the Support Magistrate improvidently exercised his discretion in “precluding” the mother from presenting evidence and testimony that he had already admitted into evidence at trial more than a year previously.


Third, contrary to the Family Court’s conclusion that the mother was also barred from objecting to the amount of arrears by the doctrine of law of the case, that doctrine is only applicable to “legal determinations that were necessarily resolved on the merits in a prior decision” (J.P. Morgan Sec., Inc. v Vigilant Ins. Co., 166 AD3d 1, 8 [1st Dept 2018] [emphasis added] [internal quotation marks omitted]). Since the mother’s earlier-filed objections were denied on procedural grounds, the application of the doctrine of the law of the case did not apply under the circumstances here.

Rosenberg & Estis, P.C. v Bergos, 18 AD3d 218 [1st Dept. 2005]

The record in this attorney fee dispute discloses that defendants willfully refused or simply failed to avail themselves of the opportunity to take plaintiff’s deposition prior to the deadline set forth in the preliminary conference stipulation, and willfully refused to obtain copies of documents that defense counsel had already inspected and tagged for copying. Under these circumstances, defendants’ motion to vacate the note of issue was properly denied since the certificate of readiness correctly represented that defendants had waived any right they had to additional discovery (cf. Munoz v 147 Corp., 309 AD2d 647, 648 [2003]; Ortiz v Arias, 285 AD2d 390 [2001]).


Discovery in aid of arb CPLR 3102(c)

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

Matter of Matter of Progressive N. Ins. Co. v Foss, 2012 NY Slip Op 04757 (2nd Dept. 2012)

The petitioner commenced this proceeding to temporarily stay arbitration of a claim for supplementary uninsured/underinsured motorist (hereinafter SUM) benefits pending the completion of certain discovery permitted by the subject insurance policy. The Supreme Court improvidently exercised its discretion in granting the petition to the extent of staying the arbitration pending the completion of certain discovery, and denying the appellants' motion to dismiss the petition. The petitioner had ample time to seek the desired discovery before commencing the proceeding, and unjustifiably failed to do so (see Matter of Government Empls. Ins. Co. v Mendoza, 69 AD3d 623, 624-625; Matter of State-Wide Ins. Co. v Womble, 25 AD3d 713, 713-714; Matter of New York Cent. Mut. Fire Ins. Co. v Gershovich, 1 AD3d 364, 365; Matter of Government Empls. Ins. Co. v Rosenfarb, 306 AD2d 478, 478-479).


Matter of Progressive Specialty Ins. Co. v Alexis, 90 AD3d 933 (2nd Dept., 2011)

The Supreme Court properly denied that branch of the petition which was to direct disclosure in aid of arbitration pursuant to CPLR 3102 (c), as the petitioner failed to demonstrate that "extraordinary circumstances" existed such that this relief would be absolutely necessary for the protection of its rights (De Sapio v Kohlmeyer, 35 NY2d 402, 406 [1974] [internal quotation marks omitted]; see Matter of Government Empls. Ins. Co. v Morris, 83 AD3d 709, 710 [2011]; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 73 AD3d 791, 791-792 [2010]).

Supplemental BP is not a disclosure device: CPLR § 3102

CPLR § 3102 Method of obtaining disclosure

Kellerson v Asis, 2011 NY Slip Op 01191 (App. Div., 4th 2011)

We reject defendant's further contention that plaintiffs improperly served a supplemental bill of particulars after the note of issue was filed and defendant had moved for summary judgment dismissing the complaint. "A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than [30] days prior to trial," so long as the continuing damages and disabilities are an anticipated sequelae of the injuries described in the original bill of particulars (CPLR 3043 [b]; see Tate v Colabello, 58 NY2d 84, 86-87). Here, plaintiffs' supplemental bill of particulars merely expanded upon the continuing disabilities alleged in the original bill of particulars and did not set forth a new legal theory of liability or new injuries (see Tate, 58 NY2d at 87). Early on in treatment, plaintiff's orthopedic surgeon specifically mentioned the possibility of a meniscal tear, and plaintiffs disclosed that statement in the original bill of particulars. Defendant contends that plaintiffs were not permitted to serve a supplemental bill of particulars after she had moved for summary judgment because her motion effectively stayed disclosure (see CPLR 3214 [b]). That contention is without merit inasmuch as a supplemental bill of particulars is not a disclosure device pursuant to CPLR 3102 (a).

3102 Pre-Action Discovery

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

Matter of Champion v Metropolitan Tr. Auth., 2010 NY Slip Op 01585 (App. Div., 1st, 2009)

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 29, 2009, which granted petitioner's motion for pre-action discovery to the extent of directing that respondents provide certain discovery and inspection of evidence within 30 days of service of a copy of the order, and continuing the stay in the order to show cause prohibiting respondents from altering, changing, repairing, servicing, modifying, moving, selling or in any other way disposing of any vehicle(s) and/or plow(s) utilized by respondents for any snow removal operations on the date of the hit and run motor vehicle accident at or near the subject intersection, unanimously modified, on the law, to strike the direction that respondents produce items 2(d), (e), (f), (g), (h), (j), (k), (m) and (n), limit the production of items 2(b), (c) and (o) to materials concerning the designated area between the hours of 9 a.m. and 11 a.m., and vacate the stay, and otherwise affirmed, without costs.

While petitioner has alleged sufficient facts to support her claim that respondents were negligent in operating the motor vehicle that caused her injury, she has failed to allege any facts supporting her negligent maintenance claim. Petitioner's requests for items 2(d), (e), (f), (g), (h), (j), (k), (m) and (n) serve no purpose other than to determine whether facts exist to support a cause of action related to a defect in the motor vehicle or the attached plow, which is not an appropriate use of CPLR 3102(c) (see Holzman v Manhattan & Bronx Surface Tr. Operating Auth., 271 AD2d 346, 347-348 [2000]). Because petitioner has not offered facts sufficient to support a negligent maintenance claim or any other claim that would require respondents' vehicles and plows to be produced or inspected, the IAS court's stay should be vacated.

Petitioner's requests for items 2(b), (c) and (o) are material and necessary to petitioner's viable negligent operation claim, because they will assist her in identifying prospective defendants, particularly the operator of the motor vehicle, and in framing her complaint (see Christiano v Port Auth. of N.Y. & N.J., 1 AD3d 289, 289 [2003]). However, the order was overly broad with respect to those items, because there was no time limitation (id.). Since [*2]petitioner sought disclosure regarding an accident that allegedly occurred around 10:00 a.m., the order should be modified as indicated above.

The bold is mine.

The Google blogger case; CPLR § 3102(c) pre-suit discovery

This case has been in the headlines in the past few weeks.  For those that don't know, an anonymous blogger posted some less than nice things on her blog.  Petitioner found those posts, was hurt and angry, and wanted to find out who said those things.  And of course she wanted to sue for defamation.  But to sue, she would need to know the anonymous blogger's identity.  So she used New York's procedural device to receive pre-suit discovery: CPLR §
3102(c).  She requested that the Court order Google to give up information as to the blogger's identity.  Prior to the action, Google refused to divulge any information without a court order.  And, it objected to petitioner's request as being overbroad, vague, etc. We'll get to the decision in a minute.

While all of us (me) here at the CPLR blog are interested in the procedural niceties of the decision, there is more at stake.  The decision and its implications have been discussed in detail all over the interweb.  Check out Simple Justice and Concurring Opinions for some discussion of this case as it relates to the big picture: the First Amendment. 

3102 Method of obtaining disclosure
(c) Before action commenced

Matter of Cohen v Google Inc., 2009 NY Slip Op 29369 (Sup. Ct., New York County, 2009)

In opposing petitioner's application, the Anonymous Blogger contends
that petitioner is not entitled to pre-action discovery because she
cannot demonstrate a meritorious claim for defamation. The Anonymous
Blogger asserts that the statements on the Blog, which appear as
captions to provocative photographs which the Blogger alleges were
posted by petitioner herself,[FN4] [*3]are
"non-actionable opinion and/or hyperbole," and that no reasonable
viewer of the Blog would conclude that the statements referring to
petitioner purport to convey verifiable statements of fact. The Blogger
argues that the words "skank" and "ho" are not statements of objective
fact which can be proven true or false; rather, the words are used in a
"loose hyperbolic" manner, and "have become a popular form of trash
talk' ubiquitous across the Internet as well as network television and
should be treated no differently than jerk' or any other form of loose
and vague insults that the Constitution protects." The Blogger further
argues that even if the words are capable of a defamatory meaning, "the
context here negates any impression that a verifiable factual assertion
was intended," since blogs "have evolved as the modern day soapbox for
one's personal opinions," by "providing an excessively popular medium
not only for conveying ideas, but also for mere venting purposes,
affording the less outspoken, a protected forum for voicing gripes,
leveling invective, and ranting about anything at all."

The law in New York governing pre-action discovery is well
settled. CPLR 3102(c) requires a court order for pre-action disclosure
to aid in bringing an action or to preserve information.
See Matter of Uddin v. New York City Transit Authority,
27 AD3d 265, 266 (1st Dept 2006). When a party seeks pre-action
disclosure to secure additional information necessary to frame a
complaint or to identify the proper defendant with respect to a known
cause of action, "courts traditionally require a strong showing that a
cause of action exists."
Siegel, Supplementary Practice Commentaries,
McKinney's Cons Laws of NY, Book 7B, CPLR 3102:5 at 92. " A petition
for pre-action discovery should only be granted when the petitioner
demonstrates that he or she has a meritorious cause of action and that
the information sought is material and necessary to the actionable
Matter of Uddin v. New York City Transit Authority, supra at 266 (quoting Holzman v. Manhattan & Bronx Surface Transit Operating Authority, 271 AD2d 346, 347 [1st Dept 2000]); accord Matter of Peters v. Southeby's Inc., 34 AD3d 29, 34 (1st Dept 2006), lv app den 8 NY3d 809 (2007); Matter of Bliss v. Jaffin, 176 AD2d 106, 108 (1st Dept 1991); Matter of Stewart v. New York City Transit Authority, 112 AD2d 939 (2nd Dept 1985). "As a general rule, the adequacy of merit rests within the sound discretion of the court.'" Matter of Peters v. Southeby's Inc., supra (quoting Mediavilla v. Gurman, 272 AD2d 146, 148 [1st Dept 2000]).[FN5]

Here, petitioner is entitled to pre-action disclosure of information as
to the identity of the Anonymous Blogger, as she has sufficiently
established the merits of her proposed cause of action for defamation
against that person or persons, and that the information sought is
material and necessary to identify the potential defendant or
defendants. See Matter of Uddin v. New York City Transit Authority, supra ; Matter of Stewart v. New York City Transit Authority, supra .
The elements of a cause of action for defamation "are a false
statement, published without privilege or authorization to a
third-party, constituting fault as judged by, at a minimum, a
negligence standard, and, it must either cause special harm or
constitute defamation per se." Dillon v. City of New York , 261 AD2d 34, 38 (1st Dept 1999); accord Salvatore v. Kumar, 45 AD3d 560, 563 (2nd Dept 2007), lv app den 10 NY3d 703 (2008). The Anonymous Blogger's contention that the statements about petitioner
on the Blog are protected opinion or hyperbole which is not actionable,
raises an issue as to the first element which requires a statement of
fact as opposed to opinion.

The Court found that the the words used "can be understood to describe the petitioner as sexually promiscuous; that the statements are facts that can be proven true or false; and that the words used can be "reasonably susceptible to a defamatory connotation, as opposed to a word like "jerk."

The Court continues:

The court also rejects the Anonymous Blogger's argument that this
court should find as a matter of law that Internet blogs serve as a
modern day forum for conveying personal opinions, including invective
and ranting, and that the statements in this action when considered in
that context, cannot be reasonably understood as factual assertions. To
the contrary, as one court in Virginia has articulated: "In that the
Internet provides a virtually unlimited, inexpensive, and almost
immediate means of communication with tens, if not hundreds, of
millions of people, the dangers of its misuse cannot be ignored. The
protection of the right to communicate anonymously must be balanced
against the need to assure that those persons who choose to abuse the
opportunities presented by this medium can be made to answer for such
transgressions. Those who suffer damages as a result of tortious or
other actionable communications on the Internet should be able to seek
appropriate redress by preventing the wrongdoers from hiding behind an
illusory shield of purported First Amendment rights." In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va Cir Ct), revd on other gds, 261 Va 350, 542 SE2d 377 (Va Sup Ct 2001) (quoted in Public Relations Society of America, Inc. v. Road Runner High Speed Online, supra ).

Thus, in light of the merits of petitioner's proposed cause of
action for defamation, and the materiality and necessity of the
requested information, petitioner is entitled to an order pursuant to
CPLR 3102(c) directing respondent Google to disclose the information as
to the identity of the Anonymous Blogger.
See Matter of Uddin v. New York City Transit Authority, supra ; Matter of Stewart v. New York City Transit Authority, supra .

Accordingly, it is hereby

ORDERED AND ADJUDGED that the petition is granted and respondent
Google, Inc. and/or its subsidiary Blogger.Com, shall forthwith provide
petitioner with information as to the identity of the Anonymous
Blogger(s), specifically that person's or persons' name(s),
address(es), email address(es), IP address(es), telephone number(s),
and all other information that would assist in ascertaining the
identity of that person or persons.

Footnote No. 5 offers an interesting comparison between New York and New Jersey law as to when the "identity of an anonymous Internet speaker should be disclosed to a potential plaintiff."

The blogger was outed soon after the decision.  There was no appeal.

CPLR R. 3108 Court declines to issue commision to compel deposition of out of state witness

CPLR R. 3108 Written questions; when permitted

Hinds v Fischer, 2009 NY Slip Op 51594(U) (App. Term, 1st, 2009)

The motion court did not improvidently exercise its
broad discretion in the supervision of discovery-related matters (see Red Apple Supermarkets, Inc. v Malone & Hyde, Inc.,
251 AD2d 78 [1998]) by denying defendant's eleventh-hour motion to take
the deposition of several nonparty witnesses in Connecticut. Viewing
the pro se defendant's application as one seeking the issuance of a
commission pursuant to CPLR 3108, the motion was properly denied in the
absence of any showing that "the proposed out-of-State deponent[s]
would not cooperate with a notice of deposition or would not
voluntarily come within this State or that the judicial imprimatur
accompanying a commission will be necessary or helpful when the
[designee] seeks the assistance of the foreign court in compelling the
witness[es] to attend the examination[s]'"
(Reyes v Riverside Park Community [Stage I], Inc., 59 AD3d 219 [2009], quoting, inter alia, Wiseman v American Motors Sales Corp, 103 AD2d 230, 235 [1984]).

We also sustain the denial of that branch of defendant's motion
for discovery of plaintiff's medical records pertaining to plaintiff's
physical condition (including "AIDS, sexually transmitted diseases
[and] alcohol and/or substance abuse"), since such records are
privileged and are not "material and necessary" to the defense of
plaintiff's sole remaining defamation cause of action (CPLR 3101[a]; see generally Monica W. v Milevoi, 252 AD2d 260, 262-263 [1999]). Defendant's remaining discovery request has been rendered moot.

Keep in mind that defendant is pro se, the "eleventh-hour" timing, and that the matter is in civil court. 

Even if the lower court issued a commission, a Connecticut court would have to enforce it.  For an interesting example of a New York court being asked to enforce an out of state commission, click here.

Bumpus (IMPORTANT): CPLR § 1024; § 306-b; § 3102; R. 3025; § 602; § 203

CPLR § 1024 Unknown parties

§ 306-b. Service of the summons and complaint, summons with notice,
third-party summons and complaint, or petition with a notice of
petition or order to show cause 

3102 Method of obtaining disclosure
(c) Before action commenced

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

I'm only posting the analysis on this one.  For the facts in their entirety, read the decision.  For a brief intro to the decision, click here.

Bumpus v New York City Tr. Auth., 2009 NY Slip Op 05737 (App. Div., 2nd, 2009)

II. The Interplay of CPLR 1024 and 306-b

New York State Legislature has recognized that there are circumstances
where a party is ignorant, in whole or in part, of the identity of a
person who should be made a party to an action. CPLR 1024 allows for
the commencement of an action against an unknown party "by designating
so much of his name and identity as is known"
(see generally Orchard Park Cent. School Dist. v Orchard Park Teachers Assn., 50
AD2d 462, 467). To be effective, a summons and complaint must describe
the unknown party in such a manner that the "Jane Doe" would understand
that she is the intended defendant by a reading of the papers (see Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855, 856; Justin v Orshan, 14 AD3d 492; Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482).

The use of CPLR 1024 presents many pitfalls. One pitfall is that
parties are not to resort to the "Jane Doe" procedure unless they
exercise due diligence, prior to the running of the statute of
limitations, to identify the defendant by name and, despite such
efforts, are unable to do so
(see Hall v Rao, 26 AD3d 694, 695; Justin v Orshan, 14 AD3d 492, 492-493; Opiela v May Indus. Corp., 10 AD3d 340, 341; Tucker v Lorieo, 291 AD2d 261; Porter v Kingsbrook OB/GYN Assoc., 209
AD2d 497). Any failure to exercise due diligence to ascertain the "Jane
Doe's" name subjects the complaint to dismissal as to that party (see Hall v Rao, 26 AD3d at 695; Justin v Orshan, 14 AD3d at 492-493; Opiela v May Indus. Corp., 10
AD3d at 341). A second requirement unique to CPLR 1024 is that the
"Jane Doe" party be described in such form as will fairly apprise the
party that she is the intended defendant (see City of Mount Vernon v Best Dev. Co., 268 NY 327, 331; Olmsted v Pizza Hut of Am., Inc., 28 AD3d at 856; Justin v Orshan, 14
AD3d at 492-493). An insufficient description subjects the "Jane Doe"
complaint to dismissal for being jurisdictionally defective (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482-483; Reid v Niagra Mach. & Tool Co., 170 AD2d 662). A third pitfall unique to CPLR 1024 is its interplay with CPLR 306-b.

Prior to 1992, when actions in the Supreme and County Courts
were commenced by the service of process rather than by filing, a party
suing a "Jane Doe" defendant was under no particular time deadline for
ascertaining the unknown party's identity, other than commencing an
action against all defendants prior to the expiration of the relevant
statute of limitations
(see Luckern [*3]v Lyondale Energy Ltd. Partnership, 229 AD2d 249, 255)[FN1].
However, the enactment of CPLR 306-a in 1992 required that actions in
Supreme and County Courts be commenced by filing rather than by service

(L 1992, ch 216, § 6; see generally Matter of Fry v Village of Tarrytown, 89
NY2d 714, 718-720) and upon filing, CPLR 306-b, which was enacted at
the same time as 306-a (L 1992, ch 216, § 7), superimposed the
requirement that service of process be effected within 120 days (see CPLR 306-b; see generally Leader v Maroney, Ponzini & Spencer, 97
NY2d 95, 100-101). The filing of the summons with notice or summons and
complaint fixed the point at which an action was commenced for statute
of limitations purpose
(see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 100; Matter of Gershel v Porr, 89 NY2d 327, 330).

The enactment of CPLR 306-b placed plaintiffs wishing to
commence actions against "Jane Doe" defendants in an unenviable
position that did not previously exist. By virtue of CPLR 306-b,
plaintiffs were required to ascertain the identity of unknown "Jane
Doe" parties, and to serve process upon them, within 120 days from
As a practical matter, it is not always easy or even possible
for plaintiffs naming "Jane Doe" defendants to meet the service
expectations of CPLR 306-b. In any given case involving two or more
defendants including an unknown party, a plaintiff may serve process
upon the known defendants early in the 120-day service period, and then
wait 20 or 30 days for appearances and answers (see CPLR 320[a]), absent consent extensions or pre-answer motions to dismiss the complaint (see CPLR
3211). Upon the joinder of issue, the plaintiff may then serve
discovery demands upon the known parties or upon non-parties for
information that may identify the unknown party, and wait for responses
which may or may not be fruitful, complied with, or timely. The
mechanics of serving process upon known parties, joining issue,
demanding discovery, and receiving meaningful responses will, as a
practical matter, exhaust, in many cases, all or most of the 120-day
period of CPLR 306-b for effecting service upon the newly-identified
party. If a "Jane Doe" is the only named defendant in an action, the
timely identification of the party's true identity for service of
process is even more challenging.

The harshness of CPLR 306-b under these circumstances is
ameliorated, in appropriate instances, by the "good cause" and
"interest of justice" exceptions to CPLR 306-b.
These exceptions have
particular utility in actions where, as here, a plaintiff is delayed in
effecting service of process by virtue of not knowing the identity of a
target defendant.

The 120-day service provision of CPLR 306-b can be extended by
a court, upon motion, "upon good cause shown or in the interest of
justice" (CPLR 306-b). "Good cause" and "interest of justice" are two
separate and independent statutory standards
(see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-06). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v Zaltsman, 39 AD3d 852; Lipschitz v McCann, 13 AD3d 417), or fails to make at least a reasonably diligent effort at service (see e.g. Kazimierski v New York Univ., 18 AD3d 820; Baione v Central Suffolk Hosp., 14 AD3d 635, 636-637; Busler v Corbett, 259
AD2d 13, 15). By contrast, good cause may be found to exist where the
plaintiff's failure to timely serve process is a result of
circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate Corp. v Spallone, 13 Misc 3d 1236[A], quoting Eastern Refractories Co., Inc. v Forty-Eight Insulations, Inc., 187 FRD 503, 505; see also Greco v Renegades, Inc., 307 AD2d 711, 712 [difficulties of service associated with locating defendant enlisted in military]; Kulpa v Jackson, 3 Misc 3d 227, 235 [difficulties associated with service abroad through the Hague Convention]).

If good cause for an extension is not established, courts must consider the "interest of justice" standard of CPLR 306-b (see e.g. Busler v Corbett, 259
AD2d at 17). The interest of justice standard does not require
reasonably diligent efforts at service, but courts, in making their [*4]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142,
1144), as its factors also include the expiration of the statute of
limitations, the meritorious nature of the action, the length of delay
in service, the promptness of a request by the plaintiff for an
extension, and prejudice to the defendant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Jordan v City of New York, 38 AD3d 336, 339; Estey-Dorsa v Chavez, 27 AD3d 277; Mead v Singleman, 24 AD3d at 1144; de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313; Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 90-91, affd 97 NY2d 95; see also Slate v Schiavone Const. Co., 4 NY3d 816).

The practicing bar need not rely exclusively on the ameliorative
provisions of CPLR 306-b for coping with the difficulties posed by
pursuing actions against unknown parties. There are, in fact, at least
four procedural mechanisms that may be utilized which, if applicable
and successful, would render unnecessary a party's reliance upon "good
cause" or the "interest of justice" for additional time to serve
process upon "Jane Doe" defendants who cannot be readily identified.

One such method is pre-action disclosure as permitted by CPLR
The statute permits a prospective plaintiff to seek, by court
order, disclosure that will aid in bringing the action (see CPLR
3102[c]). It has been recommended that a request for pre-action
disclosure be sought by means of a special proceeding pursuant to CPLR
article 4
(see Connors, Practice Commentary, McKinney's Cons Laws of NY, CPLR C3102:4, quoting Robinson v Government of Malaysia, 174 Misc 2d 560). While pre-action disclosure is often thought of as a device to enable the plaintiff to frame a complaint (see generally Matter of Wien & Malkin v Wichman, 255 AD2d 244; Matter of Perez v New York City Health and Hosps. Corp., 84 AD2d 789; Matter of Rosenberg v Brooklyn Union Gas Co., 80 AD2d 834; Matter of Urban v Hooker Chems. & Plastics Corp., 75 AD2d 720; Matter of Roland, 10 AD2d 263, 265) or to preserve evidence for a forthcoming lawsuit (see generally Matter of Thomas v New York City Tr. Police Dept., 91 AD2d 898; Gearing v Kelly, 15 AD2d 477; Matter of O'Grady v City of New York, 164 Misc 2d 171, 173; Matter of Spraggins v Current Cab Corp., 127
Misc 2d 774, 775), it has also been recognized as an appropriate device
for ascertaining the identities of prospective defendants
(see Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411; Matter of Toal v Staten Is. Univ. Hosp., 300 AD2d 592; Matter of Stewart v New York City Tr. Auth., 112 AD2d 939, 940; Perez v New York City Health and Hosps. Corp., 84 AD2d at 789; Matter of Bergan v Sullivan Bros. Wood Prods. of Keeseville, 77 AD2d 723; Matter of Roland, 10
AD2d at 265). Plaintiffs' attorneys who are retained sufficiently in
advance of the expiration of the statute of limitations may avoid the
problem of identifying a "Jane Doe" defendant for service within the
time limits of CPLR 306-b, where successful pre-action disclosure
results in the identification of the unknown defendant prior to the
filing of a summons and complaint.

A second mechanism, available when a governmental entity may
know the identify of the unknown party, is the Freedom of Information
Law (Public Officers Law art 8, hereinafter FOIL). In a case such as
this involving a public employee, Public Officers Law § 89 would
require the disclosure of the employee's name
(see Matter of Faulkner v Del Giacco, 139
Misc 2d 790, 794 [disclosure of names of prison guards accused of
inappropriate behavior]), but exempt from disclosure the employee's
home address (see Public Officers Law §§ 87[2][b]; 89[2][b]; 89[7]; Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397, 407-408, mod 102
AD2d 395). Nothing in the Public Officers Law appears to prohibit the
disclosure of records identifying an employee's work location and
schedule, which was the information that the NYCTA ultimately agreed to
provide to the plaintiff's counsel in this instance to enable service
of process upon Smith. FOIL requests are designed to be acted upon by
public agencies expeditiously, typically within five business days from
receipt of a written request for non-exempt records (see Public
Officers Law § 95[1][a]). The speed of the statute can prove useful to
practitioners who, facing an approaching statute of limitations, seek
to identify the "Jane Doe" party prior to the commencement of the

Third, if pre-action discovery or FOIL requests are not viable
options, plaintiffs intending to pursue a "Jane Doe" defendant may
commence their actions against any known co-defendants, who may possess
information identifying the unknown party, well in advance of the
statute of limitations
(accord Misa v Hossain, 42 AD3d at 486).
Doing so affords two distinct procedural options. If the discovery
process would not lead to an identification of the unknown target in
sufficient time for service of process upon that party under the
limited 120-day deadline of CPLR 306-b, the subsequent disclosure of
identifying information will still permit, within the wider statute of
limitations, either an amended complaint by stipulation or by leave of
court naming the [*5]additional party (see CPLR
3025[b]), or alternatively, the commencement of a timely separate
action against the additional party with a view to its later
consolidation with the original action (see CPLR 602[a]
; cf. Matter of Vogel, 19 Misc 3d 853,
859). Commencing the initial action well before the expiration of the
statute of limitations makes service upon the newly-identified party
possible. The same result does not inure to practitioners who wait
until the limitations period is close to expiring before commencing
their actions against known parties.

Fourth, when an originally-named defendant and an unknown "Jane
Doe" party are united in interest, i.e. employer and employee, the
later-identified party may, in some instances, be added to the suit
after the statute of limitations has expired pursuant to the
"relation-back" doctrine of CPLR 203(f), based upon post-limitations
disclosure of the unknown party's identity
(see Reznick v MTA/Long Is. Bus, 7 AD3d 773, 774; Gottlieb v County of Nassau, 92
AD2d 858). The relation-back doctrine allows a party to be added to an
action after the expiration of the statute of limitations, and the
claim is deemed timely interposed, if (1) the claim arises out of the
same conduct, transaction, or occurrence, (2) the additional party is
united in interest with the original party, and (3) the additional
party knew or should have known that but for a mistake by the plaintiff
as to the identity of the proper parties, the action would have been
brought against the additional party as well (see Buran v Coupal, 87
NY2d 173, 178). The moving party seeking to apply the relation-back
doctrine to a later-identified "Jane Doe" defendant has the added
burden of establishing that diligent efforts were made to ascertain the
unknown party's identity prior to the expiration of the statute of
limitations (see Hall v Rao, 26 AD3d at 695; Scoma v Doe, 2 AD3d at 433; Tucker v Lorieo, 291 AD2d at 262).

Furthermore, if the plaintiff is truly at the mercy of a service
extension under CPLR 306-b, which is discretionary on the part of the
(compare Crystal v Lisnow, 56 AD3d 713, 714 with Cooper v New York City Bd. of Educ., 55 AD3d 526),
any "Jane Doe" service problem should be proactively addressed by the
filing of a motion for a CPLR 306-b extension. Indeed, the promptness
of a request for an extension of time to serve a "Jane Doe" defendant
is a specific factor that is to be considered by courts in determining
"interest of justice" extensions
(see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Anonymous v New York State Off. of Children & Family Servs., 53 AD3d 810, 810-811; Rosenzweig v 60 N. St. LLC, 35 AD3d 705; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476, affd
97 NY2d 95). While CPLR 306-b is not construed to require that a motion
for a service extension be filed before the expiration of the 120-day
statutory period (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106-07), prompt motions are more likely to be successful (id.; Scarabaggio v Olympia & York Estates Co., 278 AD2d at 476), as they are a sign of diligence, whereas dilatory motions are less so (see Matter of Anonymous v New York State Off. of Children & Family Services, 53 AD3d at 810-811).

The bold is mine.

CPLR § 3101(a)

CPLR § 3101 Scope of disclosure

Rivera v NYP Holdings Inc., 2009 NY Slip Op 04706 (App. Div., 1st, 2009)

We conclude that the denial of defendants' motion to compel constituted
an improvident exercise of discretion. Full disclosure is required of
"all matter material and necessary" to the defense of an action (CPLR
3101[a]), and the words "material and necessary" are "to be interpreted
liberally to require disclosure . . . of any facts bearing on the
controversy" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403,
406 [1968]). Defendants are entitled to the discovery they seek in
their efforts both to establish their defense of truth to plaintiff's
defamation claims (see Wright v Snow, 175 AD2d 451 [1991], lv dismissed 79 NY2d 822 [1991]), and to defend against plaintiff's assertion of damage to his reputation (cf. Burdick v Shearson Am. Express, 160 AD2d 642 [1990], lv denied 76 NY2d 706 [1990]). Moreover, defendants are entitled to the opportunity to demonstrate the truth of the articles as a wholesee Miller v Journal News,
211 AD2d 626, 627 [1995]), warranting disclosure even as to assertions
in those articles that are not directly challenged in plaintiff's
complaint. Therefore, the inquiries related to grand jury testimony by
plaintiff, information sought from or provided by plaintiff to the
Commission on [*2]Judicial Conduct, and
plaintiff's arrest record, if any, seek information sufficiently
material and relevant to the defense of the action to warrant

Laguna v Mario's Express Serv., Inc., 2009 NY Slip Op 04869 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff
appeals, as limited by her brief, from so much of an order of the
Supreme Court, Kings County (Bayne, J.), dated November 21, 2007, as
granted the defendants' motion for renewal and reargument of their
prior oral application for access to the plaintiff's medical records
"beyond a 3 year period," which was denied by order of the same court
(Ambrosio, J.) dated June 28, 2007, and upon renewal and reargument
granted the defendants access to "the complete medical records relating
the plaintiffs' initial diagnosis & follow up treatment to present
for cerebral palsy."

ORDERED that the order dated November 21, 2007, is reversed
insofar as appealed from, on the facts and in the exercise of
discretion, with costs, and the motion is denied.

The evidence submitted by the defendants upon their motion for
renewal and reargument was insufficient to justify a new determination.
The defendants failed to establish that the additional disclosure was
material and necessary to the defense of the action (see Cynthia B. v New Rochelle Hosp. Med Ctr, 60 NY2d 452, 465, 457; Chevrin v Macura, 28 AD3d 600; DeStrange v Lind, 277
AD2d 344), nor did they demonstrate that "access to earlier medical
records would result in the discovery of admissible or relevant
evidence" (DeStrange v Lind, 277 AD2d at 345).

The bold is mine.

CPLR § 3101(d)

CPLR § 3101(d) Trial Preparation

Ryan v St. Francis Hosp., 2009 NY Slip Op 04045, (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in precluding
the testimony of the plaintiffs' proposed expert on the subject of
whether the defendant Andrew E. Lituchy was the attending physician of
record and in charge of the injured plaintiff's care during the entire
hospitalization on the ground that there were no facts in the record to
support the expert's opinion
(see Cassano v Hagstrom, 5 NY2d 643, 646; Martinez v Mullarkey, 41 AD3d 666, 670; Simo v New York City Tr. Auth., 13 AD3d 609, 611).

Under the circumstances, the Supreme Court also providently
exercised its discretion in precluding the testimony of the plaintiffs'
proposed expert as to purported departures from the [*2]standard
of care by certain nonparty physicians. The plaintiffs failed to give
notice prior to trial of the specific subject matter of the expert's
testimony setting forth a different theory of recovery not readily
discernable from the plaintiffs' bill of particulars and the statements
in their CPLR 3101(d) responses
(see Durant v Shuren, 33 AD3d 843, 844; Dalrymple v Koka, 2 AD3d 769, 771).

The bold is mine.

CPLR § 3103(a); § 3102(e)

Enforcement of an out of state subpoena and the Court’s ability to quash.

3102 Method of obtaining disclosure
3103 Protective orders

Matter of Trump v Sulzberger, 2008 NY Slip Op 51810(U) (Supreme Court, New York County).

Here, Trump made a motion in New Jersey for "non-party out-of-state depositions of three executives of The Times" and the motion was granted by Judge Kassel.

Addressing possible objections by the deponents or The Times, Judge
Kassel ruled that as non-parties, their objections would have to be
raised in New York after the subpoenas were served, and that he was
only "looking at whether or not the defendants are prejudiced." Judge
Kassal concluded that "[t]he bottom line is this, and I can’t give a
better reason, other than the fact that my sense that it’s not a wild
goose chase. . . . I’m going to permit the depositions, at least from
New Jersey’s end."

Well, what about New York’s end?  Here’s where it gets interesting.

On March 19, 2008, Trump filed an ex parte application in the Supreme
Court of the County of New York, for an order pursuant to CPLR 3201(e)
authorizing New York service of subpoenas ad testificandum and duces
tecum on Sulzberger, Keller and Ingrassia. On that same day, the Hon.
William J. Davis issued an ex parte order granting the application, and
directing Sulzberger, Keller and Ingrassia to appear for depositions,
and to produce the demanded documents. Sulzberger and Keller [FN4]
are now moving to quash the subpoenas, arguing that they impose an
unreasonable burden on senior executives of a non-party who have no
direct knowledge of the facts in the dispute, and that the "tangential
information" sought from these witnesses is not legitimately needed in
the New Jersey action.

CPLR 3102(e) provides that when a court in another state issues a
mandate or commission requiring testimony by a New York witness, the
witness "may be compelled to appear and testify in the same manner and
by the same process as may be employed for the purpose of taking
testimony in actions pending in the state."
CPLR 3102(e). Under section
3102(e), a New York court can order the testimony of a witness or
compel the production of documents in aid of an action pending outside
the state. The purpose of CPLR 3102(e) is to make available the
mechanism of New York courts to secure disclosure from persons subject
to New York jurisdiction for use in an action in any other
jurisdiction. See Kirkland & Ellis v. Chadbourne & Parke LLP,
176 Misc 2d 73, 76-77 (Sup Ct, NY Co 1998); 7B McKinney’s §3102,
Commentary C3102:9 at 500-500. "It is appropriate for the Sister State
court which has the underlying case, and is therefore in a better
position to determine the appropriate scope of disclosure, to make the
threshold determination as to whether to permit the discovery. The New [*4]York court’s role is necessarilBiggery more limited." Matter of Welch, 183 Misc 2d 890, 891 (Sup Ct, NY Co 2000).

If the court in another state permits the discovery, the New York
"court’s inquiry with respect to objections raised by persons required
to testify pursuant to CPLR 3102(e) is limited to determining (1)
whether the witnesses’ fundamental rights are preserved; (2) whether
the scope of inquiry falls within the issues of the pending
out-of-state action; and (3) whether the examination is fair."
Matter of Ayliffe & Cos, 166 AD2d 223, 224 (1st Dept 1990), lv app den 76 NY2d 714 (1990) (citing Matter of Brandes v. Harris,
78 AD2d 638, 639 [2nd Dept 1980]). "The courts will not prejudge the
materiality or the competency of the evidence in a cause pending in
another jurisdiction and will afford the widest possible latitude in
the conduct of such examinations.’" Id (quoting Matter of Roberts, 214 AD 271, 275 [1st Dept 1925]).

Notwithstanding the foregoing, New York courts retain
discretionary authority under CPLR 3103(a) to issue a protective order
or to quash a subpoena issued pursuant to CPLR 3102(e), due to over
breadth or to prevent unnecessary harassment
, see Matter of Dier, 297 AD2d 577 (1st Dept 2002), Law Office of Paul A. Lange v. Roman Catholic Diocese of Dallas, 245 AD2d 118, 119 (1st Dept 1997), due to an independent determination that the material sought is not critical or necessary, see Brown & Williamson Tobacco Corp. v. Wigand,
228 AD2d 187 (1st Dept 1996), app withdrawn 90 NY2d 901 (1997), or due
to the inclusion of material protected by the attorney-client
, see Bombadier Capital Inc. v. Schoengold Sporn Laitman & Lometti P.C., 46 AD3d 323 (1st Dept 2007), Kirkland & Ellis v. Chadbourne & Parke, supra.
These cases require this court to exercise its discretion and review
the subpoenas under the standards enumerated above, rather than simply
"rubber stamping" the determination of the New Jersey court. See id at 77.


All the bold is mine.

In the end, the Court, after taking several factors into account, decided to quash one subpoena and limit the scope of the discovery requested as to the other.

In short, CPLR § 3102(e) allows New York courts to enforce discovery ordered by a court in a different state, it has the ability to issue a protective order pursuant to CPLR § 3103(a) under a limited set of circumstances.