Upon the following e-filed papers read on plaintiff’s application for an order precluding defendant from conducting further deposition of plaintiff and quashing the subpoena served on non-party Jill Guadagno; Notice of Motion dated January 17, 2018 and supporting papers (Doc # 29-34); Notice of Cross-Motion dated February 15, 2018 and supporting papers (Doc #37-40); Reply Affirmation in support dated March 9, 2018 and supporting papers (Doc #42-43); and Reply Memorandum of Law in Further Support of Defendant’s Cross-Motion (Doc #44); it is, ORDERED that plaintiff’s application for an order precluding defendant from conducting further deposition of plaintiff is decided as set forth herein; and it is furtherORDERED that plaintiff’s application to quash the subpoena served on non-party Jill Guadagno is denied; and it is furtherORDERED that defendant’s application to compel a second deposition of plaintiff is decided as set forth herein; and it is furtherORDERED that defendant’s application to compel the deposition testimony of non-party Jill Guadagno is denied as set forth herein; and it is furtherORDERED that defendant’s application for an award of costs and attorneys’ fees related to the motion and depositions is denied.ORDERED that any second deposition of plaintiff is to be conducted within 60 days of the date of this order; and it is furtherORDERED that all attorneys of record in this action are directed to appear for a compliance conference before this Court on Monday, May 20, 2019 at 9:30AM in the Cromarty Court Complex, Part 27, 210 Center Drive, Riverhead, NY 11901.Plaintiff Matthew Barbara (“plaintiff”) brings this action against the defendant, Nicholas Guadagno (“defendant”), to recover money damages for physical injuries sustained by plaintiff and caused by defendant, as a result of an assault by defendant upon plaintiff that occurred on July 24, 2014 (“the incident”). As a result of the incident defendant plead guilty to one count of attempted assault in the second degree, a Class E Felony, and one count of assault in the third degree, a Class A Misdemeanor. As a result of the plea agreement entered into on June 3, 2015 before the Hon. Richard Ambro, Justice, Supreme Court, Suffolk County, defendant was afforded a one year term of interim probation. On June 3, 2016, after successfully completing the interim probation, Justice Ambro expunged the felony conviction and defendant was resentenced to a term of probation on the misdemeanor conviction alone.Plaintiff previously moved for summary judgment on the issue of liability (Seq. #001) which motion was granted by order dated April 12, 2017. In its decision the court noted that defendant did not raise any claims of provocation during his plea allocution or sentencing and the court determined defendant is collaterally estopped from making any attempted defense in this action as to his liability for the injuries caused to plaintiff and arguing that he was somehow provoked by plaintiff, as he had a full and fair opportunity to raise that defense previously in the criminal case yet he chose not to. By its decision the court also granted defendant’s request that he be given the opportunity to conduct discovery solely on the issue of damages.In accordance with the court’s order plaintiff appeared for deposition on November 7, 2017 on the issue of damages. During the deposition defendant’s counsel attempted to question plaintiff regarding the details of the incident and plaintiff’s counsel objected and directed plaintiff not to answer. The deposition was adjourned and counsel appeared for a previously scheduled conference with the court on November 22, 2017, at which time a telephone conference with the court was scheduled for November 30, 2017. During the telephone conference the deposition issues were discussed and counsel were advised to proceed by motion and a schedule was set by the court. Plaintiff now moves for an order precluding defendant from conducting further deposition based on this court’s order of April 12, 2017 and quashing the subpoena served on non-party Jill Guadagno (Seq. #002). Defendant cross-moves to compel a second deposition of plaintiff, for an order directing plaintiff answer questions relating to the details of the incident, the events leading to the incident, the relationships and state of mind of those involved and the totality of circumstances surrounding the incident, defendant also seeks an order pursuant to CPLR 2308(B) compelling the deposition testimony of non-party Jill Guadagno, and for an award of costs and attorneys’ fees related to the motion and depositions (Seq. #003). The court scheduled a conference on the motions for August 22, 2018 which was adjourned by counsel to September 26, 2018, at which time the motions were conferenced by the court and marked submitted.In support of his motion plaintiff argues that pursuant to this court’s April 12, 2017 order defendant is collaterally estopped from raising any attempted defense that he was somehow provoked by plaintiff, including as it relates to plaintiff’s request for punitive damages. In opposition and in support of its cross-motion to compel defendant argues that the court’s April 12, 2017 order only addressed defendant’s civil liability, not damages. Further defendant argues that plaintiff’s claim for punitive damages renders all testimony about the incident, defendant’s motivation, and defendant’s state of mind, admissible.FURTHER DEPOSITIONWhere punitive damages are sought, all circumstances immediately connected with the transaction tending to exhibit or explain a defendant’s motivation for the conduct in question are admissible in evidence (see Moran v. International Playtex, 103 AD2d 375 [2d Dept 1984]). In a civil action for assault, a defendant may show, in mitigation of damages, that plaintiff’s words or actions immediately preceding the assault provoked defendant’s assault (see Kiff v. Youmans, 86 NY 324 [1881]; Voltz v. Blackmar, 64 NY 440 [1876]; Pirodsky v. Pirodsky, 179 AD2d 1066 [4th Dept 1992]).In its order of April 12, 2017 the court granted plaintiff summary judgment on the issue of liability and directed the parties to complete discovery solely on the issue of plaintiff’s damages. Hence during the course of the deposition plaintiff’s counsel’s directions to her client not to answer certain questions about the incident was in keeping with the parameters of 22 NYCRR §221.2 as it was plaintiff’s understanding that sole remaining issue for discovery was plaintiff’s damages. Defendant argues that plaintiff’s claims for punitive damages renders all testimony about the altercation, defendant’s motivation, and defendant’s state of mind admissible, citing Levine v. Abergel, 127 AD2d 822 [2d Dept 1987] in support. The resolution of defendant’s argument will await the trial, however it seems to this court that the best evidence of defendant’s motivation and defendant’s state of mind would be through testimony of defendant himself.It is well settled that the scope of examination at deposition is broader than the scope of examination permissible at trial (see Horowitz by Horowitz v. Upjohn Co., 149 AD2d 467 [2d Dept 1989]). Where punitive damages are sought, all circumstances immediately connected with the transaction tending to exhibit or explain a defendant’s motivation for the conduct in question are admissible in evidence (see Moran v. International Playtex, 103 AD2d 375 [2d Dept 1984]). In a civil action for assault, a defendant may show, in mitigation of damages, that plaintiff’s words or actions immediately preceding the assault provoked defendant’s assault (see Kiff v. Youmans, supra; Voltz v. Blackmar, supra; Pirodsky v. Pirodsky, supra) (emphasis supplied).While the court agrees with defendant that testimony about the incident, as well as defendant’s motivation, and defendant’s state of mind, are relevant to defend against a claim for punitive damages, the case law is clear that it is the circumstances immediately connected with the incident which tend to explain the motive of the defendant that are to be considered by the trier of fact (see Laurie Marie M. v. Jeffrey T.M., 159 AD2d 52 [2d Dept 1990], aff’d sub nom., 77 NY2d 981 [1991]; Le Mistral, Inc. v. Columbia Broadcasting Sys., 61 AD2d 491 [1st Dept 1978] (“As recovery of punitive damages depends upon the defendant acting with evil or wrongful motive or with a willful and intentional misdoing, or with a reckless indifference equivalent thereto, ‘[a]ll…circumstances immediately connected with the transaction tending to exhibit or explain the motive of the defendant are admissible ‘” (citation omitted)); Levine v. Abergel, supra., (“The plaintiff on his part may show that there was express malice, and, on the other hand, the defendant is entitled to the benefit of any circumstances tending to show that he acted under an honest belief that he was justified in doing the act complained of, or under immediate provocation, or the impulse of sudden passion or alarm excited by the conduct of the plaintiff”)(emphasis supplied).Since plaintiff is claiming punitive damages, and there should be full disclosure on issues material and necessary to the defense of an action (CPLR 3101), it follows that all of the circumstances immediately surrounding the incident require disclosure (Pirodsky v. Pirodsky, supra). Accordingly defendant’s cross-motion is granted to the extent plaintiff is directed to appear for a second deposition to answer questions limited to the details immediately preceding the incident. And that part of plaintiff’s motion for protective order is granted to the extent that defendant is prohibited from asking plaintiff questions regarding the relationships and state of mind of those involved including questions about plaintiff’s relationship with his wife (deposition at p. 111); and questions to plaintiff regarding the relationship between plaintiff’s wife and defendant (deposition at p. 113) which do not relate to the details immediately preceding the incident.Accordingly any second deposition of plaintiff is to be conducted within 60 days of the date of this order. Counsel are reminded that in the event discovery disputes continue the court will not hesitate to direct discovery proceed under the supervision of a court appointed referee (see CPLR 3104) to be paid for by the parties.NONPARTY DEPOSITIONPursuant to CPLR 3101 (a) (4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure. Disclosure from a nonparty requires no more than a showing that the requested information is “material and necessary” (see Kapon v. Koch, 23 NY3d 32 [2014]). In moving to quash, the movant must establish either that the discovery sought is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious (see Ferolito v. Arizona Beverages USA, LLC, 119 AD3d 642 [2d Dept.2014]).Here, while plaintiff moved to quash the subpoena served on nonparty Jill Guadagno, and defendant cross-moved to compel her deposition, each movant only served its application on counsel for their adversary, and the nonparty was never served with the motions. When the court has no jurisdiction over the nonparty, it has no power to order relief against it (see Dune Deck Owners Corp. v. J. J. & P Associates Corp., 85 AD3d 1091 [2d Dept 2011]; Oakley v. Albany Med. Ctr., 39 AD3d 1016 [3d Dept 2007] ). Since nonparty Jill Guadagno has not been served with either the motion or cross-motion addressing her deposition, she is not properly before this court and the court is without authority to order relief against her. Accordingly both plaintiff’s motion to quash, and defendant’s cross-motion to compel, are denied without prejudice.Notwithstanding the foregoing it does not appear to this court that the discovery sought is utterly irrelevant to the action. However any such testimony would be limited solely to the issue of plaintiff’s damages, and limited to that point in time beginning when plaintiff was injured and continuing. Perhaps the attorneys for the parties can be guided by the court’s decision and proceed with discovery in a professional manner without the need for further motion practice.That part of defendant’s application for an award of costs and attorney’s fees related to his motion to compel and for additional discovery is denied as defendant failed to demonstrate that plaintiff’s conduct was frivolous (see 22 NYCRR 130-1.1[c]).This constitutes the order and decision of the court.Dated: February 15, 2019
