Tirado v. Miller

• Decision Date: 18 May 2010
• Citation: 901 N.Y.S.2d 358,2010 N.Y. Slip Op. 04364,75 A.D.3d 153
• Parties: Carol TIRADO, appellant,v.Samuel MILLER, et al., respondents;Travelers Insurance Company, nonparty-respondent.
• Court: New York Supreme Court — Appellate Division

75 A.D.3d 153

901 N.Y.S.2d 358

2010 N.Y. Slip Op. 04364

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.

Robert C. Fontanelli, P.C., Brooklyn, N.Y. (Brian J. Isaac of counsel), for appellant.James J. Toomey, New York, N.Y. (Evy L. Kazansky of counsel), for respondents.MARK C. DILLON, J.P., RANDALL T. ENG, ARIEL E. BELEN, and L. PRISCILLA HALL, JJ.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 time line of the parties' litigation is straight-forward. 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 defendants were insured under a homeowner's policy issued by a nonparty, Travelers Insurance Company (hereinafter Travelers).

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 Traveler's 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 to the issues of the litigation. The plaintiff opposed the motion, contending that no privilege attached to the information sought and that the insurance claim file and deposition were relevant to establishing the inconsistencies of Miriam Miller's statements.

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 “Non-party Subpoena's [ sic ] were Served postNote of Issue And [that] Discovery in the form of Nonparty [D]epositions Are Not Permitted PostNote 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 A.D.2d 634, 290 N.Y.S.2d 435). CPLR 3402(a) provides that notes of issue may be filed at any time after issue is joined, or 40 days after service of the summons irrespective of the joinder of issue, and must be accompanied by whatever data is required by the applicable rules of court. 22 NYCRR 202.21(a) is an applicable rule of court which requires all notes of issue to be accompanied by certificates of readiness. While the standard pre-printed form places the note of issue on its front side and the certificate of readiness on its back, the sequencing of the documents is actually the other way around, as the filing of a certificate of readiness is, in effect, a condition precedent to the filing of a note of issue ( see 22 NYCRR 202.21[a]; Panicker v. Northfield Sav. Bank, 12 Misc.3d 1153[A], 2006 WL 1340991).

A certificate of readiness certifies that all discovery is completed, waived, or not required and that the action is ready for trial ( see 22 NYCRR 202.21[b] ). The effect of a statement of readiness is to ordinarily foreclose further discovery ( see Blondell v. Malone, 91 A.D.2d 1201, 459 N.Y.S.2d 193; Niagara Falls Urban Renewal Agency v. Pomeroy Real Estate Corp., 74 A.D.2d 734, 425 N.Y.S.2d 701; Bookazine Co. v. J & A Bindery, 61 A.D.2d 919, 403 N.Y.S.2d 221).

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 CPLR 3101[a] ), which is to be liberally construed ( see Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430; Byck v. Byck, 294 A.D.2d 456, 457, 743 N.Y.S.2d 126; U.S. Ice Cream Corp. v. Carvel Corp., 190 A.D.2d 788, 593 N.Y.S.2d 861). Post-note discovery, on the other hand, may only be sought under two procedural circumstances set forth in 22 NYCRR 202.21. As discussed by this Court in an opinion by Justice Feuerstein in Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 138, 707 N.Y.S.2d 137, one method of obtaining post-note discovery is to vacate the note of issue within 20 days of its service pursuant to 22 NYCRR 202.21(e), by merely showing that discovery is incomplete and the matter is not ready for trial. The second method, beyond that 20 days, requires that the movant, pursuant to 22 NYCRR 202.21(d), meet a more stringent standard and demonstrate “unusual or unanticipated circumstances and substantial prejudice” absent the additional discovery ( Audiovox Corp. v. Benyamini, 265 A.D.2d at 138, 707 N.Y.S.2d 137; see Schroeder v. IESI N.Y. Corp., 24 A.D.3d 180, 181, 805 N.Y.S.2d 79; Aviles v. 938 SCY Ltd., 283 A.D.2d 935, 936, 725 N.Y.S.2d 256).

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 22 NYCRR 202.21(a). Accordingly, any additional discovery sought by the plaintiff from Travelers must meet the requirements of 22 NYCRR 202.21(d) that the discovery be needed because of “unusual or unanticipated circumstances” and that its absence causes “substantial prejudice.”

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 necessarily limited by the specific arguments raised by parties in their submissions. CPLR 2214(a) provides that a notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which it is based, the relief demanded, and the grounds therefor. A court typically lacks the jurisdiction to grant relief that is not requested in the moving papers ( see McGuire v. McGuire, 29 A.D.3d 963, 965, 816 N.Y.S.2d 158; NYCTL 1998–1 Trust v. Prol Props. Corp., 18 A.D.3d 525, 527, 795 N.Y.S.2d 96). The notice of motion in this instance sought an order quashing the subpoena and granting a protective order on the limited grounds of privilege and irrelevance. However, the notice of motion also contained a general prayer, for “such other and further relief as [the][c]ourt may deem just and proper.”

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 N.Y., 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...