DECISION and ORDER Upon the foregoing papers, plaintiff moves (013) for an order striking the defendants’ answer or, in the alternative, compelling disclosure of defendants’ excess insurance information and the last known address of a non-party witness. Separately, plaintiff moves (015) for her testimony to be recorded for trial in light of her advanced age and the extraordinary circumstances surrounding the COVID-19 public health emergency. After review of the papers, together with the opposition submitted thereto; review of the Court file; and upon due deliberation, the motions are decided as follows. I. Factual Background Plaintiff commenced this action by summons and complaint on November 14, 2013, seeking redress for injuries she allegedly sustained due to defendants’ negligence. As relevant to the motions herein, plaintiff filed her note of issue on December 14, 2016, certifying that this matter is ready for trial and all discovery known to be necessary had been completed. Plaintiff is now 81 years old and a special trial preference was granted (Miles, J. [May 11, 2017]). After delays due to motion practice on both sides, the trial of this matter was expected to commence on April 13, 2020, but was administratively adjourned in the wake of the COVID-19 public health emergency that caused this Court, and all others in the State, to close to non-essential matters. II. Discussion a. Motion to Strike Defendants’ Answer and Compel Discovery In moving to strike defendants’ answer, plaintiff alleges a failure by defendants to disclose excess insurance information in accordance with her March 18, 2014, notice for discovery and inspection of all insurance policies belonging to defendants. Plaintiff now alleges that defendants’ responses were incomplete and failed to include, if relevant, an affidavit of no-excess. Pursuant to 22 NYCRR 202.21 (d), the Court can authorize additional discovery post-note of issue”[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness” that would otherwise cause “substantial prejudice” (Audiovox Corp. v. Benyamini, 265 AD2d 135, 138 [2d Dept 2000]; Dominguez v. Manhattan & Bronx Surface Tr. Operating Auth., 168 AD2d 376 [1st Dept 1990]). Plaintiff failed to meet her burden of demonstrating unusual or unanticipated circumstances warranting post-note of issue discovery. Plaintiff was aware, or should have been, prior to filing the note of issue and certifying that all discovery was complete, that defendants failed to reveal the existence of excess coverage or tender an affidavit of no-excess. Accordingly, plaintiff’s motion to strike is denied in its entirety. b. Motion Permitting Plaintiff’s Trial Testimony to be Recorded In moving to record plaintiffs testimony, de bene esse, plaintiff raises a novel issue — just one more of the many occasioned by COVID-19. In stark opposition to the motion, defendants correctly point out that there is no express legal authority for plaintiff’s request. Indeed, there is no precedent for this here in New York, nor can any reported decisions be found outside this State. However, that will not foreclose relief. “Although the Legislature has primary authority to regulate court procedure, the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute” (People v. Wrotten, 14 NY3d 33, 37 [2009] [internal quotation marks and citation omitted]). This Court is empowered by the Judiciary law “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it” (Judiciary law §2-b [3]). The Court of Appeals has acknowledged “courts may fashion necessary procedures consistent with constitutional, statutory, and decisional law” (id., citing People v. Ricardo B., 73 NY2d 228, 232 [1989]). After careful review, the Court is inclined to grant the requested relief. In deliberating on the motion, the Court is guided by the unique circumstances of this case. Foremost, plaintiff has a special trial preference based on her age (CPLR 3403[a][4]). CPLR 3403 compels the preference to be granted as of right upon a proper showing of plaintiff’s age. At first, the age requirement was 75 until the legislature amended the statute in 1979 to lower the threshold to 70, underscoring the desire to bring justice to those who might be deprived of it in their lifetime should there be any delay (L 1979, ch 61, §§1, 2, eff April 9, 1979). Professor Siegel opined: The purpose of paragraph 4 is to recognize the few years the plaintiff has remaining and to offer some measure of financial comfort during those years…[I]t will have the collateral benefit of increasing the likelihood that the testimony of such party will be available at the trial, thus avoiding the evidentiary problems met when a party in interest is no longer available to testify personally (David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR 3403:5). Here, plaintiff is 81 years old and was granted a special trial preference three years ago. Permitting the elderly plaintiff’s testimony to be recorded for use at trial is consistent with the spirit of statutory law and, thus, a just exercise of the latitude this Court is afforded by Section 2-b(3). Second, in the fog of COVID-19, there is no date for this to proceed to trial. While in-person jury trials are resuming in this Courthouse at the time of this writing, the Court takes notice that plaintiff’s advanced age makes her particularly vulnerable to the disease, and would not compel plaintiff to appear for trial were it even a possibility at this time. Finally, any cries of prejudice are alleviated by defendants being afforded an opportunity to cross-examine the plaintiff in real time. To be sure, the plaintiff’s full testimony shall be recorded for the jury’s consideration, both direct and cross-examination, with objections preserved for rulings at trial. III. Conclusion Based on the foregoing, plaintiff’s motion to strike defendants’ answer is denied in its entirety. However, whereas the availability of the plaintiff at a future trial is reasonably doubted; the trial date of this matter uncertain; plaintiff’s special preference and increased risk for life threatening complications should she contract COVID-19; and whereas this appears a just exercise of this Court’s discretion under the Judiciary Law, plaintiff’s motion to record plaintiff’s testimony for use at trial is granted. Plaintiff shall provide notice of a virtual deposition, to be recorded for use at trial, not less than 14 days prior to the scheduled date. ACCORDINGLY, it is hereby ORDERED that plaintiff’s motion (013) is denied in its entirety; and it is further ORDERED that plaintiff’s motion (015) is granted to the extent delineated herein. This is the Decision and Order of the Court. Dated: October 23, 2020
