The headline above states a somewhat startling proposition, but represents the holding of the Appellate Division, Fourth Department, in Thompson v. Mather, 70 A.D.3d 1436, 894 N.Y.S.2d 671 (4th Dept. 2010). The decision is an important one for lawyers representing parties and non-parties alike, especially in those instances where the statute of limitations governing a potential claim against the non-party witness is still alive.
Does the Fourth Department’s conclusion invite strategizing by the plaintiff’s lawyer? Is there a distinct advantage to commencing an action against one defendant, and then pursuing disclosure from potential defendants in a non-party deposition, where the non-party’s lawyer effectively has the status of a potted plant? Before addressing some of these issues, we need some background.
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