N.Y. C.P.L.R. § 3101

Under CPLR 3101(a), a plaintiff seeking to depose additional municipal witnesses must show that the official offered by the municipality cannot provide material and necessary evidence.

Colicchio v. City of New York · filed 1992-03-17(a)

Only when the plaintiff establishes that the knowledge of the proffered official is insufficient to produce testimonial and documentary evidence "material and necessary” to the prosecution of the action, as provided in CPLR 3101 (a), may the court grant a motion for the production of additional witnesses (supra).

A party’s employee expert may be deposed about opinion testimony under subsection (a) without satisfying subsection (d)’s special circumstances requirement.

Glasburgh v. Port Authority · filed 1995-03-09(a), (d)

Defendant Otis Elevator Company’s noticed expert is also its employee and is therefore subject to deposition pursuant to CPLR 3101 (a) without restriction as to opinion testimony (McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20; Lingener v State Farm Mut. Auto. Ins. Co., 195 AD2d 838). The special circumstances requirement of CPLR 3101 (d) does not apply to an expert who is an employee of a party (see, Maser v County of Onondaga, 90 AD2d 970, lv dismissed 58 NY2d 1047).

Section 3101(a) requires a party seeking additional depositions to show that the witnesses already produced lack sufficient knowledge to provide material and necessary evidence.

Defina v. Brooklyn Union Gas Co. · filed 1995-07-31(a)

The plaintiffs have failed to demonstrate that the two witnesses previously produced by the Brooklyn Union Gas Company, who made service calls to the plaintiffs’ residence immediately after it was destroyed by an explosion, lacked sufficient knowledge of the facts to produce "material and necessary” evidence (see, CPLR 3101 [a]; Colicchio v City of New York, supra; D’Ulisse v Town of Oyster Bay, supra).

A subrogation agreement requiring full cooperation can establish an insurer’s control over its subrogor’s employees for disclosure under CPLR 3101.

United States Fire Insurance v. Rockland Fire Equipment Co. · filed 1996-05-21(a)(1), (a)(2)

The subrogation agreement between plaintiff and its subrogor, in which the subrogor agreed to cooperate fully with plaintiff in its prosecution of subrogation actions such as this, establishes plaintiff’s control over its subrogor’s employees for purposes of disclosure (see, CPLR 3101 [a] [1], [2]).

CPLR 3101(a) defines the scope of disclosure for a party’s employees, whether or not they are noticed as experts.

Zambanini v. Otis Elevator Co. · filed 1997-09-16(a)

The scope of disclosure for employees of a party, whether noticed as experts or not, is defined by CPLR 3101 (a), rather than CPLR 3101 (d), which governs the parameters of disclosure where nonemployee expert witnesses are involved.

CPLR 3101(a) permits a vocational rehabilitation expert to personally evaluate an injured plaintiff when the evaluation would yield information material and necessary to the defense.

Diviesti v. Sudds · filed 1998-04-27(a)

Under the circumstances of this case, the Supreme Court properly held that a “personal evaluation” of the injured plaintiff by the defendants’ expert in the field of vocational rehabilitation would yield information which, under CPLR 3101 (a), is “material and necessary” to the defense of the action (see also, Kavanagh v Ogden Allied Maintenance Corp., 245 AD2d 341; Burger v Bladt, 112 AD2d 127; LaBossiere v Hudson, 187 AD2d 411).

Section 3101 permits a defendant to compel a physical examination by a physician specializing in vocational rehabilitation when the plaintiff has retained her own vocational rehabilitation expert for trial.

Bradley v. Fisher Associates · filed 1998-06-15

Under the circumstances of this case, where the plaintiff engaged her own nonphysician vocational rehabilitation expert in preparation for such expert testimony at trial, the Supreme Court improvidently exercised its discretion in denying that branch of the defendants’ cross motion which was to compel the plaintiff to submit to a physical examination by a physician who is a vocational rehabilitation specialist (see, CPLR 3101; Diviesti v Sudds, 249 AD2d 503).

Section 3101 does not permit compelling a mother to undergo an IQ examination when the result would do little to resolve whether lead exposure caused her child’s injuries.

Andon v. 302-304 Mott Street Associates · filed 1999-05-20

Nor are defendants entitled to conduct an IQ examination of the mother under CPLR 3101, which “broadly mandates ‘full disclosure of all matter material and necessary in the prosecution or defense of an action’ ” (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954, supra) and has been liberally construed “to require disclosure where the matter sought will ‘assist preparation for trial by sharpening the issues and reducing delay and prolixity’ ” (Hoenig v Westphal, 52 NY2d 605, 608, quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406). ... In our view, however, since so many variables are involved, the test result will raise more questions than it will answer and hardly aid in the resolution of the question of causality.

A party seeking to depose a chief executive under § 3101(a) must show that other managers lack sufficient knowledge and that the executive has necessary, relevant information.

Arendt v. General Electric Co. · filed 2000-03-09(a)

Plaintiffs wholly failed to establish that the numerous managers already deposed, particularly the senior vice-president, ... lacked sufficient knowledge of the facts to produce “material and necessary” evidence (CPLR 3101 [a]; see, Defina v Brooklyn Union Gas Co., 217 AD2d 681) or, more importantly, that the chief executive officer actually possessed necessary and relevant information germane to their lawsuit such that he too should be produced (see, e.g., Saieh v Demetro, 201 AD2d 477; Colicchio v City of New York, 181 AD2d 528, 529; see generally, Broadband Communications v Home Box Off., 157 AD2d 479).

Section 3101 permits a qualified nonmedical expert to conduct a relevant examination without physician supervision.

Knauer v. Anderson · filed 2000-05-31(a)

If the expert is otherwise qualified, and the examination is relevant to the issues in the case, there is nothing in CPLR 3101 which would require “supervision” by a medical expert.

Section 3101(a) permits discovery through a vocational rehabilitation examination when a plaintiff puts work capacity at issue and the court balances the need for the examination against its burden.

Smith v. Manning · filed 2000-11-13(a)

Because plaintiff intends to establish her present lack of capacity to perform in the work force, “[p]laintiffs thereby overtly made vocational rehabilitation assessment procedures ‘material and necessary in the * * * defense’ for the purposes of rebuttal” (Kavanagh v Ogden Allied Maintenance Corp., supra, at 955; see, CPLR 3101 [a]; see also, Hoenig v Westphal, supra, at 610).

Section 3101(a) permits a further deposition about a party’s efforts to locate records.

Burgos v. Makoc · filed 2001-12-24(a)

Contrary to the appellant’s contention, the Supreme Court providently exercised its discretion in directing a further deposition of the defendant as to the efforts he undertook to locate certain records (see, CPLR 3101 [a]).

Section 3101(a)(1) permits depositions of a defendant’s employees when they are substantially likely to have information bearing on the controversy that will help prepare for trial.

Fronczak v. Zizzi · filed 2002-06-14(a)(1)

Plaintiffs thus established that there is a substantial likelihood that the physician’s assistants possess information bearing on the controversy that will assist plaintiffs in preparing for trial (see Barbara v Brunswick Hosp. Ctr., 172 AD2d 792, 793; Heil v Nassau Hosp., 99 AD2d 482; Gregoritsch v Mather Mem. Hosp., 88 AD2d 987, 988; see generally CPLR 3101 [a] [1]).

A party seeking additional depositions must show that the witnesses already produced were inadequate and that the proposed witnesses have information material and necessary to the case.

Thomas v. Benedictine Hospital · filed 2002-07-25(a)

A party seeking additional depositions must demonstrate the inadequacy of the persons previously produced and that the proposed additional witnesses possess information material and necessary to the case (see, Barone v Great Atl. & Pac. Tea Co., 260 AD2d 417, 418; Zollner v City of New York, 204 AD2d 626, 627; Lotz v Albany Med. Ctr. Hosp., 85 AD2d 836; Dow v Xciton Corp., 75 AD2d 972; see generally, CPLR 3101 [a]).

Section 3101(a) does not require a second deposition merely because a witness is later designated as a liability witness when the first deposition thoroughly covered the relevant issues.

Nash v. Port Authority of New York & New Jersey · filed 2002-09-05(a)

The parties to an action are entitled to the “full disclosure of all matter material and necessary in the prosecution or defense of an action * * *” (CPLR 3101 [a]). ... We find, therefore, that plaintiff’s late designation of herself as a liability witness, without more, is insufficient to support an order directing her further deposition.

Section 3101 permits denial of requested depositions when the party seeking them fails to adequately show that the witnesses know facts bearing on the issues.

Walia v. Nassau County · filed 2003-03-03

The plaintiff failed to adequately show that the designated correction officers possess knowledge of the facts bearing on the issues in this case (see MS Partnership v Wal-Mart Stores, 273 AD2d 858 [2000]; Defina v Brooklyn Union Gas Co., 217 AD2d 681 [1995]; Dwyer v State, 158 AD2d 660 [1990]). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was to depose these officers (see CPLR 3101).

Section 3101(a)(1) does not require a party to use its best efforts to produce former employees or an outside consultant for depositions merely because it has not proved a lack of control or influence over them.

Doomes v. Best Transit Corp. · filed 2003-03-27(a)(1)

We reject appellants’ contention that Warrick can be compelled to use its “best efforts” to produce former employees, or an outside consultant who was never its employee, unless it proves that it no longer has any control or influence over them (cf. CPLR 3101 [a] [1]; 3106 [b]; see Holloway v Cha Cha Laundry, 97 AD2d 385, 386 [1983]; DiMare v New York City Tr. Auth., 81 AD2d 574 [1981]).

Section 3101(a) permits a defendant to compel a vocational rehabilitation examination when a plaintiff claims continuing lost earnings from an inability to work, even if the plaintiff has not retained a vocational expert.

Freni v. Eastbridge Landing Associates LP · filed 2003-10-30(a)

Under CPLR 3101, defendants are not limited to reliance on the testimony of one of their previously noticed medical experts in order to contest plaintiffs incapacity to work. ... Defendants may consider a vocational rehabilitation expert far more qualified than a medical doctor in determining whether plaintiffs injuries prevent him from working, and restricting them from this proof on the ground that plaintiff failed to retain his own expert would impair their right to discovery.

Section 3101 permits a court to compel a vocational rehabilitation examination when it is material and necessary to defend against a claim for future lost wages, even if the plaintiff has not retained a vocational expert.

Perasevic v. Nouveau El. Indus. · filed 2004-01-27

Plaintiffs have also not cited to any authority, and the court is not aware of any, which affirmatively prohibits a trial court from exercising its supervisory authority over discovery matters pursuant to CPLR 3101 in regard to the examination of a plaintiff by a vocational specialist under these circumstances.

CPLR 3101(a) limits a deposition in a no-fault first-party benefits case to appropriate background information and defenses specifically raised in the insurer’s denial of claim.

All-County Medical & Diagnostic P.C. v. Progressive Casualty Insurance · filed 2005-05-13(a)

This court holds that, apart from eliciting appropriate pedigree and background information of the witness, the subject matter of a deposition in a no-fault first-party benefits case is to be limited to the defenses that were specifically raised in the NF-10.

Section 3101(a)(1) subjects a party’s employee to disclosure of matter material and necessary to an action.

Town of Brookhaven v. Liere · filed 2005-12-05(a)(1)

Since the Senior Town Attorney is employed by the plaintiff Town, he is subject to CPLR 3101 (a) (1), which provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action ... by ... a party, or the officer, director, member, agent or employee of a party.”

Section 3101(a) does not require a radiology provider to produce a nonparty referring physician to testify about the medical necessity of prescribed scans.

Elmont Open MRI & Diagnostic Radiology, P.C. v. New York Central Mutual Fire Insurance · filed 2007-03-30(a)

The principle that the “assignee ‘stands in the shoes’ of an assignor” should not be construed to mean that it is the plaintiff radiologist’s burden to produce at its deposition the nonparty who might possess information on the medical necessity for the prescribed radiological imagings.

Section 3101(a)(1) does not require a party to produce for deposition a person who is not its officer, director, member, agent, or employee.

Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc. · filed 2007-06-28(a)(1)

Vijay Mehta should not be required to travel to New York to submit to a deposition. He is not an officer, director, member, agent or employee of Occidental (CPLR 3101 [a] [1]).

Section 3101(a) entitles an insurer defending a no-fault benefits claim to examinations before trial.

Five Boro Psychological Services, P.C. v. AutoOne Insurance · filed 2010-04-09(a)

Defendant is also entitled to examinations before trial (see CPLR 3101 [a]; ...).

Section 3101(a) permits additional depositions when earlier representatives lacked sufficient knowledge and the proposed witnesses are substantially likely to have material and necessary information.

Spohn-Konen v. Town of Brookhaven · filed 2010-06-15(a)

To show that additional depositions are necessary, it must be demonstrated (1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) that there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case (see Nazario v City of New York, 27 AD3d 439 [2006]; Hayden v City of New York, 26 AD3d 262 [2006]; Saxe v City of New York, 250 AD2d 751, 752 [1998]; Carter v New York City Bd. of Educ., 225 AD2d 512 [1996]; Zollner v City of New York, 204 AD2d 626, 627 [1994]).

Section 3101(a)(1) permits depositions of a party’s attorneys when their testimony is sufficiently related to the issues in litigation, even if the party has admitted negligence.

RIORDAN, CLARENCE F. v. CELLINO & BARNES, P.C. · filed 2011-05-06(a)(1)

“The test is one of usefulness and reason, and CPLR 3101 (a) should be construed to permit discovery of testimony [that] is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable” (Southampton Taxpayers Against Reassessment, 176 AD2d at 796 [internal quotation marks omitted]). The depositions sought by plaintiff satisfy that test, and defendants failed to meet their burden of making an “appropriate factual showing” that they are entitled to a protective order limiting discovery (Willis v Cassia, 255 AD2d 800, 801; see State of New York v General Elec. Co., 215 AD2d 928, 929).

Section 3101(a)’s full disclosure rule does not entitle a party to invasive examination procedures that may harm the person being examined.

D'Adamo v. Saint Dominic's Home · filed 2011-09-13(a)

With respect to the denial of that branch of the plaintiffs motion which was for a protective order, the Supreme Court improvidently exercised its discretion. While CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution ... of an action,” “the principle of ‘full disclosure’ does not give a party the right to uncontrolled, and unfettered disclosure” (JFK Family Ltd. Partnership v Millbrae Natural Gas Dev. Fund 2005, L.P., 83 AD3d 899, 900 [2011]; see Buxbaum v Castro, 82 AD3d 925 [2011]; Peluso v Red Rose Rest, Inc., 78 AD3d 802 [2010]; Foster v Herbert Slepoy Corp., 74 AD3d 1139 [2010]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2007]).

Section 3101(a) permits an insurer to examine a provider’s owner before trial after the provider produces relevant documents.

Q-B Jewish Med. Rehabilitation, P.C. v. Allstate Insurance · filed 2011-10-28(a)

In addition, defendant is entitled to an EBT of McGee following the production of the documents (see CPLR 3101 [a]).

Section 3101(a) permits a second deposition on mental health issues when the testimony is material and necessary to the defense.

DONALD, DARLENE v. AHERN, DEVAN E. · filed 2012-06-15(a)

Plaintiff’s mental health records are a proper part of disclosure in this case, the deposition of plaintiff on the issue of her mental health is material and necessary to the defense, and defendant’s attorney specifically requested an opportunity to depose plaintiff a second time on issues related to her mental health (see CPLR 3101 [a]; Gromoll v Bertolino, 4 AD3d 759, 759-760).

CPLR 3101(a) requires a party seeking to compel interrogatory responses to show that the responses are insufficient or that the requested information is material and necessary.

Collins v. Yodle, Inc. · filed 2013-04-11(a)

Nor did Supreme Court abuse its broad discretion in denying plaintiffs motion to compel. Plaintiff failed to establish that defendants’ responses to the first set of interrogatories were insufficient or that the second set of interrogatories sought “material and necessary” information (CPLR 3101 [a]; ...).

Section 3101(a) supports an order compelling a defendant to submit to a deposition.

VINCENT AUTOMOTIVE, INC. v. CHEVRON U.S.A., INC. · filed 2013-06-07(a)

Finally, we conclude that plaintiffs’ cross motion to compel defendant’s deposition should have been granted (see CPLR 3101 [a]; see generally Garrett v Community Gen. Hosp of Greater Syracuse, 288 AD2d 928, 929).

Section 3101(a) permits an examination before trial when it is material and necessary to a defendant's medical-necessity defense.

New York Community Hosp. of Brooklyn v. Mercury Cas. Co. · filed 2016-06-06(a)

The branch of defendant's motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted ( see CPLR 3101 [a]). As defendant is defending this [*2] action on the ground that the services rendered lacked medical necessity, and defendant's moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination is material and necessary to defendant's defense ( see also Great Wall Acupuncture, P.C. v General Assur. Co. , 21 Misc 3d 45 , 47 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

CPLR 3101(a) permits an examination before trial when it is material and necessary to a party's defense.

Kanter v. Mercury Cas. Co. · filed 2016-06-06(a)

The branch of defendant's motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted ( see CPLR 3101 [a]). As defendant is defending this action on the ground that the services rendered lacked medical necessity, and defendant's moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination is material and necessary to defendant's defense ( see also Great Wall Acupuncture, P.C. v General Assur. Co. , 21 Misc 3d 45 , 47 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Section 3101(a) permits a party to compel an examination before trial when it is material and necessary to the party’s defense.

Atlantic Radiology Imaging, P.C. v. Interboro Mut. Ins. Co. · filed 2016-06-23(a)

As defendant's moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant's defense ( see Great Wall Acupuncture, P.C. v General Assur. Co. , 21 Misc 3d 45 , 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), the branch of defendant's motion seeking to compel plaintiff to appear for an EBT should have been granted ( see CPLR 3101 [a]).

Section 3101(a) permits factual deposition questions but does not require a plaintiff to answer questions seeking legal conclusions about the defendant’s negligence.

Kaye v. Tee Bar Corp. · filed 2017-06-29(a)

Here, the challenged questions addressed the ultimate legal contentions as to the warnings required, the dangerous conditions created and the risks involved, and do not, as defendants contend, speak just to the underlying facts. It is one thing, for example, for defendants to have inquired as to what warnings were given — an acceptable factual inquiry that Kaye duly responded to during his deposition. It is altogether something else to then ask Kaye to explain what warnings he felt defendants should have given. The latter inquiry is a legal assessment derived from the underlying facts that goes beyond the factual evidentiary scope of a deposition.

Section 3101(a) permits a defendant to examine the plaintiff's owner before trial in an action for assigned no-fault benefits.

Dana Chiropractic, P.C. v. USAA Cas. Ins. Co. · filed 2017-07-21(a)

Contrary to plaintiff's contention, defendant is entitled to an examination before trial of plaintiff's owner ( see CPLR 3101 [a]; see also Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co. , 21 Misc 3d 144 [A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co. , 20 Misc 3d 136 [A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Section 3101(a) permits an insurer to examine a provider's owner before trial in an action to recover assigned no-fault benefits.

Clinton Place Med., P.C. v. USAA Cas. Ins. Co. · filed 2017-08-11(a)

In addition, defendant is entitled to an examination before trial of plaintiff's owner ( see CPLR 3101 [a]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co. , 21 Misc 3d 144 [A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture , 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Section 3101(a) permits an examination before trial when it is material and necessary to an insurer’s lack of medical necessity defense.

S.J. Pahng, M.D., P.C. v. AutoOne Ins. Co. · filed 2017-11-03(a)

As defendant's moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant's lack of medical necessity defense ( see Great Wall Acupuncture, P.C. v General Assur. Co. , 21 Misc 3d 45 , 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008]), the branch of defendant's motion seeking to compel plaintiff to appear for an EBT should have been granted ( see CPLR 3101 [a]).

Section 3101(a) entitles a defendant insurer to examine a provider before trial in an action for assigned no-fault benefits.

Parisien v. 21st Century Ins. Co. · filed 2018-07-06(a)

In addition, defendant is entitled to an examination before trial of plaintiff (see CPLR 3101 [a]; ...).

Section 3101(a) permits a party to compel an examination before trial when it is material and necessary to a defense.

Bay Plaza Chiropractic, P.C. v. Auto One Ins. Co. · filed 2018-07-06(a)

However, as defendant's moving papers established that [*2] defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant's lack of medical necessity defense ( see Great Wall Acupuncture, P.C. v General Assur. Co. , 21 Misc 3d 45 , 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008]), the branch of defendant's motion seeking to compel plaintiff to appear for an EBT should have been granted ( see CPLR 3101 [a]).

Section 3101(a) supports compelling a deposition about a property damage claim when the testimony is material and necessary to the defense.

Silva v. Progressive Ins. Co. · filed 2017-12-01(a)

"CPLR 3101 (a) provides that [t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof' " ( Eremina v Scparta , 120 AD3d 616, 618 [2014] [citations omitted]). ... In view of the Civil Court's discretionary power to supervise disclosure, we find no reason to disturb its determination to direct plaintiff to appear for an EBT.

Section 3101 requires a party seeking to depose opposing counsel to show that the information is material and necessary, that the request has a good faith basis, and that the information is unavailable from another source.

Liberty Petroleum Realty, LLC v. Gulf Oil, L.P. · filed 2018-08-02(a)

Accordingly, we remand this matter to the motion court for further proceedings to determine whether plaintiffs have shown that the information they seek in deposing defendants' counsel is material and necessary ( Kapon , 23 NY3d at 34), that they have a good faith basis for seeking it ( see Matter of Winston , 238 AD2d at 346), and that the information is not available from another source.

CPLR 3101(a) permits a court to deny a deposition as redundant when the witness was already deposed in a related action.

American Med. Alert Corp. v. Evanston Ins. Co. · filed 2019-03-07(a)

The motion court denied the motion on the ground that because the employee had been deposed in the related action, an examination by Evanston would be redundant. We decline to disturb the motion court's ruling ( see Reyes v Lexington 79th Corp. , 149 AD3d 508 [1st Dept 2017]; CPLR 3101[a]).

Section 3101 does not require a second deposition to pursue privileged or irrelevant information or questions already answered.

Czechowski v. Buffalo Niagara Med. Campus, Inc. · filed 2019-09-27

Here, the questions that plaintiff intended to ask those witnesses during the second depositions either called for privileged information, or were not material or relevant to plaintiff's personal injury action, or were asked and answered during those witnesses' first depositions ( see generally CPLR 3101; Brown v Home Depot, U.S.A. , 304 AD2d 699, 699-700 [2d Dept 2003]; MS Partnership v Wal-Mart Stores , 273 AD2d 858, 858 [4th Dept 2000]; Shapiro v Levine , 104 AD2d 800, 800-801 [2d Dept 1984]).

Section 3101(a) requires a party seeking to depose treating physicians to show that their testimony is material and necessary.

Birro v. Port Auth. of N.Y. & N.J. · filed 2020-01-07(a)

Absent proof of a discrepancy between the medical records and plaintiff's testimony, defendants failed to show that the deposition of the physicians was material and necessary to their defense ( see CPLR 3101[a]).

Section 3101(d)(1) does not require advance notice for a treating physician to testify about causation.

Duman v. Scharf · filed 2020-08-19(d)(1)

Here, the Supreme Court should not have precluded the plaintiff's treating physician from testifying regarding causation based on the defendants' failure to provide notice pursuant to CPLR 3101(d)(1), as that provision does not apply to treating physicians ( see Logan v Roman , 58 AD3d 810; Krinsky v Rachleff , 276 AD2d at 750).

Section 3101(a) permits an additional corporate deposition when the first witness lacks sufficient knowledge and another representative likely has information material and necessary to the action.

Monti v. Shaw · filed 2020-05-13(a)

Here, the plaintiffs satisfied this burden by demonstrating that the witness produced by Suffolk Coach for a deposition had insufficient knowledge of the business relationship between Suffolk Coach and Lindy's, that further discovery on the limited issue of "the nature, scope or existence of a relationship between [Suffolk Coach] and Lindy's" was material and necessary to the prosecution of the action, and that there was a substantial likelihood that another representative of Suffolk Coach possessed that information ( see CPLR 3101[a]; Bravo v Vargas , 113 AD3d 577, 579; Trueforge Global Mach. Corp. v Viraj Group , 84 AD3d at 940; Nunez v Chase Manhattan Bank , 71 AD3d 967, 968).

Section 3101(a) permits a further deposition when the earlier witness lacked knowledge and the proposed witness is likely to give material, relevant testimony.

Plana v. United Christian Evangelistic Assn. · filed 2024-04-03(a)

As Wynn would likely provide testimony that is both material and relevant to this action, and that would expound on Dubina’s pervious testimony, it is axiomatic that plaintiff and WHIDC’s request to depose Wynn is granted.

Section 3101 permits a malpractice plaintiff to question a defendant physician at a deposition about the significance of medical chart entries made by other providers.

Bowman v. Andrews · filed 2024-08-30

Hence, it is irrelevant that a physician or health-care provider other than Kyan generated the notes and entries in the plaintiff’s chart that were the subject of the plaintiff’s questioning; that chart was exchanged in the course of discovery, and the plaintiff is entitled to elicit an opinion from Kyan as to his understanding of what those notes and chart entries signify with respect to the diagnosis, treatment, and care of the plaintiff during the relevant period of time.

Section 3101 permits an additional corporate deposition when the first witness lacks material information about the dispute and another employee is likely to have it.

Thomas v. Metropolitan Transp. Auth. · filed 2024-10-03

CPLR 3101 states that there “shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” ... Here, while Wissert had some knowledge of ConEd’s business, he also clearly had insufficient information as to the areas of ConEd’s business that are at issue in this case. ... Although movants do not point to a potential deponent from ConEd for which there is a “substantial likelihood” that the deponent will “possess information necessary and material to the prosecution of the case” (Alexopoulos, 37 AD3d at 233)—and ConEd does not contend that no such witness exists—Wissert’s deposition transcript itself suggests that, at the very least, there is a substantial likelihood that Wissert’s supervisor Jennifer Grimm possesses such knowledge given that Grimm conducted the search and, as Wissert’s supervisor, she presumably has superior knowledge of the areas about which Wissert testified (Longo v Armor El., Co., Inc., 278 AD2d 127, 128-29 [1st Dept 2000] [“The deposition of the employee previously produced by Sumitomo indicated that that employee was not knowledgeable as to circumstances relevant to the presently litigated issues of notice and causation, but that Yano was”]).

Section 3101(a)(1) permits a further deposition when a party’s inadequate interrogatory responses leave material questions unanswered.

Alvarez v. 471 W. 144 LLC · filed 2025-03-24(a)(1)

The reason the plaintiff needs a further deposition is the defendants' failure to timely and sufficiently respond to the plaintiff's interrogatories.

Section 3101(a)'s liberal disclosure standard permits additional depositions when identified witnesses may know more about the accident than the first witness produced.

Stephan v. Turner Constr. Co. · filed 2025-07-01(a)

The Court grants plaintiff’s request to take the depositions of these individuals. The transcript of Mr. Jaffe (defendants’ witness) demonstrates that these witnesses may have greater personal knowledge and insight about the plaintiff’s accident. ... That satisfies the liberal standard for ordering this discovery.

CPLR 3101(a) permits a further deposition when the requested information is relevant, material and necessary, and sought in good faith for possible use as evidence.

Franco v. 800 E 173 LLC · filed 2025-07-17(a)

Supreme Court providently exercised its discretion in granting defendant's motion to compel a further deposition of plaintiff (CPLR 3101[a]; see Allen v Crowell-Collier Publ. Co. , 21 NY2d 403, 406 [1968]). ... Defendant demonstrated a substantial likelihood that plaintiff possesses information relevant to these issues. Moreover, defendant showed that this potential evidence is material and necessary because it is sought "in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination" ( Allen , 21 NY2d at 407 [internal citation omitted]).

Section 3101(a)(1) allows disclosure by deposition from a corporate party’s employees, including employees with knowledge of the facts in issue.

Niesig v. Team I · filed 1989-08-07(a)(1)

This standard is virtually meaningless when applied under New York law, since under CPLR article 31 the scope of disclosure by way of deposition extends to any "officer, director, member, agent or employee of a party” (CPLR 3101 [a] [1]; 3106 [b]).

Section 3101(a)'s disclosure obligation supports precluding trial witnesses when a party fails to identify them diligently and the delay prejudices the other party.

Devlinhair Prods., Inc. v. Pinder · filed 2026-03-12(a)

The CPLR directs that there shall be "full disclosure of all evidence material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]}. ... Upon consideration of the arguments and applicable law, the Court exercises its discretion to grant defendant's request to preclude plaintiff's two unnamed witnesses from testifying at trial.

Section 3101(a) permits a court to disregard an undisclosed witness's affirmation offered against summary judgment when the party gives no valid excuse for failing to disclose the witness.

Beaton v. Tomco Mech. Corp. · filed 2026-06-03(a)

The Supreme Court improvidently exercised its discretion in considering an affirmation of an alleged witness submitted by the plaintiff in opposition to the motion, as the plaintiff failed to disclose the witness to Tamco and failed to offer a valid excuse for that failure ( see CPLR 3101[a]; Krehl v Siberio , 228 AD3d 852, 854; Gallway v Munintir, LLC , 142 AD3d 948, 949).

Section 3101 permits examination of a nonparty corporation when its exclusive knowledge of the identities of relevant witnesses constitutes a special circumstance.

Kuzmak v. Atlantic Cement Co. · filed 1964-03-27

Movant seeks to elicit proof material and necessary to its defense. Johnson’s exclusive knowledge of the identity of the employees present constitutes an adequate special circumstance (CPLR 3101) which justifies the order of the Special Term, whose discretion should not be disturbed.

Section 3101 does not permit pretrial examination of the State when it is a party absent specific statutory authorization.

State v. Boar's Head Provisions Co. · filed 1965-05-10

The State and its officers in actions in which the State was a party were not subject to pretrial examination absent specific statutory authorization therefor. ... As no substantial change in language was effected in this area, the Legislature, by incorporating within the CPLR the same ‘ ‘ language used in the earlier act, must be deemed to have adopted also the interpretation of the legislative intent decided by this court, and to have made that construction a part of the re-enactment ”. ... Accordingly the motion is granted, and the notices vacated.

Section 3101(a) permits a witness’s distance from trial to be measured by the public transportation route and allows pretrial examination when special circumstances warrant it.

De Groote v. Weglein · filed 1965-01-19(a)(3), (a)(4)

Giving CPLR 3101 the liberal interpretation that must be accorded it ... it seems more reasonable to measure the distance by the public transportation route than by air mileage or the shortest automobile route. ... Apart from that, however, and again liberally construing the section, I find that special circumstances do exist that warrant the pretrial examination of the witness.

Section 3101(a)(4) permits examination of a witness when the court finds adequate special circumstances, including a relationship or employment that may make the witness hostile to the party seeking examination.

Flanigen v. Mullen & Gunn, Inc. · filed 1965-04-15(a)(4)

Adequate special circumstances exist for the examination.

Section 3101(a)(1) permits examination of an employee despite his lack of managerial duties or involvement in the work at issue.

Metropolitan Life Insurance v. Lane Klinow & Co. · filed 1965-03-18(a)(1)

The objection that Doyle exercises no managerial or supervisory function, and had no connection with the making of the repairs, is nullified by the broad language of CPLR, 3101 (subd. [a], par. [1]) (3 Weinstein-Korn-Miller, N. Y. Civ. Prae., par. 3101.27).

Section 3101(a)(1) permits examination of a hospital staff physician with material knowledge when the hospital offers no evidence that the physician is outside the listed categories of persons subject to disclosure.

Gould v. Carson C. Peck Memorial Hospital · filed 1965-06-01(a)(1)

The statute (CPLR 3101, subd. [a], par. [1]) provides for “full disclosure of all evidence material and necessary in the prosecution or defense of an action ” by a “ party, or the officer, director, member, agent' or employee of a party Admittedly the physician in question is a member of the hospital staff and was assigned by it to care for the infant plaintiff. The hospital offered no evidence that he was not its member, agent or employee. His testimony is material and necessary to prosecution of the action.

Section 3101(a)(4) permits pretrial examination of nonparty witnesses when they are hostile or have special or exclusive knowledge of facts in issue.

In re the Estate of Mellion · filed 1968-12-24(a)(4)

Examinations before trial of witnesses pursuant to CPLR 3101 (subd. [a], par. [4]) are permitted when it is shown that the witnesses are either hostile or have special or exclusive knowledge of the facts in issue (Southbridge Finishing Co. v. Golding, 2 A D 2d 430; Posner v. Morgenstern, 19 A D 2d 811).

Section 3101(a)(4) permits examination of a party as a witness when the court on motion determines that adequate special circumstances exist.

Richard v. New York City Transit Authority · filed 1965-07-21(a)(4)

Plaintiffs would be entitled to an examination of said party as a witness “where the court on motion determines that there are adequate special circumstances ” (CPLR 3101, subd. [a], par. 4). Since plaintiffs claimed to be without knowledge of the manner in which the collision occurred and the driver of the codefendant’s vehicle is deceased, special circumstances sufficient to warrant the examination were demonstrated on the motion.

Section 3101(a)(4) permits examination of a witness upon a showing of special circumstances, such as hostility or special or exclusive knowledge of the facts.

McDonald v. Gore Mt. Ski Lift Corp. · filed 1968-09-17(a)(4)

Thus, examinations of a witness are permitted when it is established that the witness is hostile, or where .the witness has special or exclusive knowledge of the facts in issue. ... This .affidavit, standing alone, is insufficient to sustain the burden upon the party seeking the examination of establishing special circumstances to entitle it' to the examination.

Section 3101 requires defendants seeking pretrial examination of witnesses in a Donnelly Act suit to show need or special circumstances.

State v. Biggane · filed 1965-09-30(a)(4)

On the foregoing reasoning the defendants have not met the burden of showing the need nor have they shown special circumstances warranting pretrial examination of witnesses.

Section 3101(a)(4) permits an examination when special circumstances justify the disclosure.

Blank v. Kaskel · filed 1965-10-29(a)(4)

Special Term found that special circumstances — instigated by the defendant — existed (see CPLR 3101, subd. [a], par. [4]), which justified the examination as directed.

Section 3101 permits pretrial disclosure from witnesses and relevant records when special circumstances justify the examination.

In re the Estate of Sayetta · filed 1966-01-20

Application is granted to examine said witnesses under the “ other special circumstances ” rule which has been enlarged by recent decisions, for a period of three years prior to the execution of decedent’s last will and testament.

Section 3101(a)(4) permits disclosure of a witness statement when adequate special circumstances warrant it.

Baez v. Board of Education of Bedford Central School District No. 2 · filed 1969-02-21(a)(4)

The court determines that in accordance with CPLR 3101 (subd. [a], par. [4]) there are adequate special circumstances which warrant the relief sought, and the motion is, therefore, granted.

Section 3101(a)(4) permits a nonparty's deposition when the nonparty possesses information material to the issues and the information is not privileged.

Zunino-Altman, Inc. v. Hubert Warehouses, Inc. · filed 1966-05-10(a)(4)

Under these circumstances, and it being sufficiently shown that the insurers possess information material to the issues, the taking of their depositions pursuant to CPLR 3101 (subd. [a], par. [4]) is appropriate.

Section 3101(a)(4) permits pretrial examination of a witness when adequate special circumstances warrant it.

Lippiner v. Siris · filed 1966-06-27(a)(4)

In our opinion the record discloses adequate special circumstances which warrant the examination (cf. CPLR 3101, subd. [a], par. [4]).

Section 3101 requires disclosure of witnesses present at the scene when the interests of justice require it.

Sanfilipo v. Baptist Temple, Inc. · filed 1967-02-01

The rule now seems limited to protecting a party from being required to divulge the names of witnesses not present at the scene or his attorney’s work product, and even such evidence is not invulnerable where the interests of justice require that the information be afforded to an opposing party. (CPLR 3101; and, see, Zenna v. St. Vincent’s Hosp., 13 A D 2d 824, 825; Rivera v. Stewart, 51 Misc 2d 647; Majchrzak v. Hagerty, 49 Misc 2d 1027.) ... The witnesses whose names and addresses are sought were, by plaintiff’s own statement, workmen in his charge, present at the scene, who saw the accident. ... The motion is, therefore, granted.

CPLR 3101(c) and (d) do not bar disclosure of employees’ names when the names were not obtained for litigation and are not attorney work product.

Dickinson v. O'Nuts · filed 1968-09-03(c), (d)

This court subscribes to the view that the only legitimate objections to discovery of the names of witnesses would be those found in subdivisions (c) and (d) of CPLR 3101 (see Rivera v. Stewart, 51 Misc 2d 647, 649; Sanfilipo v. Baptist Temple, 52 Misc 2d 767, 768; Maffeo v. Comtois, 55 Misc 2d 779, 780, 781). It is clear that the names of defendant’s employees were not obtained by it as a result of an investigation conducted for the purpose of litigation nor do they constitute an attorney’s work product. Accordingly the motion is denied.

Section 3101 permits disclosure of an accident witness’s identity if the information is not privileged.

Peretz v. Blekicki · filed 1969-03-03

It is our view ■that under this more modem guide the identity of witnesses to an accident should be subject to disclosure if not privileged.

Section 3101(a) permits discovery of a passenger’s identity as material and necessary even when the value of the passenger’s testimony is not yet known.

Neal v. Spence · filed 1967-03-31(a)

Though it cannot be ascertained if the testimony of such person will be essential or material and necessary in establishing the happening of the accident, the identity of the passenger, under our liberal disclosure practice, should be considered material and necessary.

Section 3101(a) identifies who may be compelled to give deposition testimony; a party cannot be examined through an unspecified family or household member.

Coonradt v. Walco · filed 1967-11-25(a)

There are limitations as to the persons who may be compelled to appear and give testimony upon a deposition, said persons falling into two basic categories: (1) a party or a present officer, director, member, agent or employee of a party, or a person who previously possessed a cause of action or defense asserted in the action; and (2) a witness (CPLR 3101, subd. [a]; Wachtell, New York Practice Under the CPLR, pp. 229-230). ... Although defendant may be examined as a party, he is not a corporation nor is there other authority to permit him to be examined “ by a member of the family or household having personal knowledge of the facts.” Nor has there been a showing that would justify a deposition by such an unspecified family or household member as a witness.

Section 3101(a)(4) permits examination before trial of an opposing party’s attorney who is a hostile witness with knowledge of pertinent facts, subject to claims of privilege.

In re the Estate of Macku · filed 1967-12-04(a)(4)

In our opinion, respondent’s attorney is a hostile witness with knowledge of pertinent facts and petitioner should be permitted to examine him before trial (CPLR 3101, subd. [a], par. [4]; ...).

Section 3101(d) protects witness identities learned through investigation after an occurrence unless changed conditions make the identities unobtainable and withholding them would cause injustice or undue hardship.

Hartley v. Ring · filed 1969-01-07(d)

Nevertheless, where a party obtains knowledge of the identity of witnesses through an investigation after the happening of the occurrence as distinguished from personal observation at the scene, such knowledge constitutes material prepared for litigation which is protected by CPLR 3101 (subd. [d]). ... In this case, disclosure may only be obtained where the court finds that the identity of the witnesses can no longer be obtained by investigation because of a change in conditions and that withholding it will result in injustice or undue hardship.

Section 3101(a)(4) permits examination before trial of a nonparty spouse who is a key witness expected to testify for the party spouse.

Dimicelli v. Marcellette · filed 1971-03-24(a)(4)

But where the person to be examined is the spouse of a party and is a key witness who can be expected to testify at the trial for the party spouse, it is no imposition to require the nonparty spouse to be examined before trial.

Section 3101(a)(4) requires a party seeking an examination to disclose enough to show the witness’s possible connection to the transactions and special, exclusive knowledge of them.

Pearson v. Pouthier · filed 1969-09-18(a)(4)

We recognize that recent decisions have liberalized the interpretation of the words “special circumstances” as contained in CPLR 3101 (subd. [a], par. [4]). There remains, however, the basic requirement that a party seeking such examination should make full disclosure so as to establish “ a possible connection of the witness with the transactions involved, about which she would have special and exclusive knowledge.”

Section 3101(a)(4) permits examination of a witness when special circumstances make the testimony necessary to prepare or present a claim and the interests of justice require it.

General Building Supply Corp. v. State · filed 1970-06-29(a)(4)

This court finds that special circumstances necessitating the production of a witness by the State exist whenever the criteria set forth in subdivision 2 of section 17, of the Court of Claims Act are met, i.e., a party cannot properly prepare for trial or present his claim at trial and the interests of justice requires his production.

Section 3101 permits discovery when special circumstances exist, including when a witness has special or exclusive knowledge of the events at issue.

Russo v. Hardy · filed 1972-02-03

The CPLR 3101 allows discovery where the court finds ‘1 special circumstances ” to exist and the courts have found special circumstances to exist where the witness to be examined has special or exclusive knowledge regarding the events to be discovered.

Section 3101(a) permits disclosure of the identity of a person who arrived after an accident when the person is closely related to the occurrence and their testimony is material and necessary.

Beyer v. New York Telephone Co. · filed 1969-10-30(a)

The rule permitting disclosure of the identity of witnesses, arriving at the scene of the accident after the occurrence, should be granted only where the witness is so closely related to the occurrence that his testimony is material and necessary.

Section 3101(a)(4) does not require a motion before examining a nonparty; if someone objects, the court determines whether adequate special circumstances exist.

Bush Homes, Inc. v. Franklin National Bank · filed 1969-11-18(a)(4)

CPLR 3101 (subd. [a], par. [4]) does not in affirmative language require that an examination of “any person ” must be obtained on motion but rather it suggests that when objection is raised (e.g., CPLR 3101, subd. [b]) the court must determine whether there are adequate special circumstances.

Section 3101(d) conditionally protects the identities of witnesses found through an attorney’s investigation; disclosure requires a showing that changed conditions prevent duplication and withholding would cause injustice or undue hardship.

Varner v. Winfield · filed 1969-12-29(d)

Since the names of the witnesses at bar are material prepared for litigation, they are immune “ unless the court finds that the material can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship” (CPLR 3101, subd. [d]). We are of the opinion that defendant has failed to establish that he can no longer duplicate the list of names because of a change in conditions and that withholding it will result in injustice or undue hardship.

Section 3101 permits discovery of witness names unless their identities fall within a protected category of material.

Clamp v. Boldt · filed 1970-04-24

Absent a showing that the identity of witnesses falls clearly within one of the classifications of protected material within the meaning of CPLR 3101, the names of witnesses are subject to discovery by any party to the action.

Section 3101(a)(3)’s distance requirement may be met when a witness lives more than 100 miles from trial, but the court may still deny a deposition when the witness’s live testimony could be crucial.

Winter v. State · filed 1971-02-08(a)(3)

The witness, alleged to be an eyewitness and hence potentially a most crucial witness, resides in Flushing, New York, well over 100 miles from Albany. Thus, it would appear that the requirements of CPLR 3101 (subd. [a], par. [3]) have been met. ... For such reasons, because of the potentially crucial role which the testimony of such witness might play in the decision which the Trial Judge will have to make, for the orderly conduct of the trial and fully to enable the Trial Judge to do justice, the court in its discretion, denies the motion to take the deposition of the witness Dr. Janusz E. Bartos (Kaufman v. State of New York, 286 App. Div. 912).

Section 3101(a)(1) does not treat independent adjusters as a party’s agents or employees for disclosure; an application under subdivision (4) requires adequate special circumstances.

Dutch Trading Corp. v. Centennial Insurance · filed 1972-05-23(a)(1)

The motion was made and granted pursuant to CPLR 3101, subd. [a], par. [1]: “ agent or employee of a party ”. The prospective witnesses were neither, but independent adjusters. This disposition is without prejudice to proper application under subdivision (4), which requires a showing of “adequate special circumstances.”

Section 3101(a)(4) permits a court to order depositions of an opposing party’s attorney and accountants who examined relevant books.

Sobel v. Bess · filed 1972-05-30(a)(4)

In our opinion it was a proper exercise of Special Term’s ... to grant the motion (CPLR 3101, snbd. [a], par. [4] ; ...).

Section 3101(a)(4) permits examination of witnesses whose exclusive knowledge and likely hostility establish special circumstances.

Weissman v. Mutual Life Insurance · filed 1973-06-28(a)(4)

Thus it appears that the two doctors, if they have knowledge of the circumstances at all, have it exclusively. Further, both doctors, one being the decedent’s friend and psychiatrist, and the other, also a psychiatrist and summoned by his colleague to assist him in response to the widow’s summons when her husband was in depression, may be presumed to be hostile. These factors present special circumstances.

Section 3101(a)(4) permits disclosure from a witness when adequate special circumstances are shown.

Braswell v. Birch Properties, Inc. · filed 1973-10-26(a)(4)

Adequate special circumstances were shown for disclosure by Wilson to satisfy the requirements of CPLR 3101 (subd. [a], par. [4]) but she was not shown to be under defendant’s control and subject to examination under CPLR 3101 (subd. [a], par. [1]).

Section 3101(a)(4) permits disclosure from nonparty physicians about a medical condition a party has put in issue.

Villano v. Conde Nast Publications, Inc. · filed 1974-11-26(a)(4)

Disclosure is warranted on this record pursuant to CPLR 3101 (subd. [a], par. [4]).

Section 3101(a)(4) permits a party to take a nonparty witness’s deposition upon oral questions.

Taibbi v. New York State Liquor Authority · filed 1975-03-25(a)(4)

Petitioners are further granted leave to take Miss Trudel’s deposition upon oral questions pursuant to CPLR 3101 (subd [a], par [4]).

Section 3101(a)(4) requires adequate special circumstances for disclosure under that provision.

Moss & Sullivan, Inc. v. Firemen's Fund Insurance · filed 1973-06-29(a)(4)

While Special Term made no determination'of adequate special circumstances as required by CPLR 3101 (subd. [a], par. [4]), we find sufficient evidence in the record to make such a determination, and we determine that such special circumstances exist as to require disclosure.

Section 3101(c) and (d) require disclosure of known eyewitnesses’ names and addresses even when their identities were learned through post-accident investigation, but do not require disclosure of their statements.

Gates v. Baker · filed 1973-07-13(c), (d)

Therefore we reach the conclusion that the names and addresses of the witnesses to the accident and events immediately preceding and after it within the knowledge of the plaintiffs or their attorneys should be disclosed.

CPLR 3101 requires disclosure of the names and addresses of witnesses who may testify to a defective condition relevant to liability, including witnesses to constructive notice.

Zayas v. Morales · filed 1974-11-04

We perceive no difference in theory between discoverability of the identity of an eyewitness to an accident and the identity of a witness who would testify to the existence of a defective condition which was allegedly the competent producing cause of an accident.

Section 3101(a)(3) permits examination of an out-of-state medical examiner when the autopsy findings may be crucial to determining the cause of death.

Bernikow v. Allstate Insurance · filed 1974-05-21(a)(3)

Clearly it would appear that a medical examiner’s testimony as to his findings and conclusions of an autopsy could be crucial to the case. It could well prove the cause of death or by negative inference rule out other causes. This is indeed a special circumstance requiring the examination of a witness.

Section 3101(a) permits examination of a nonparty accountant whose review of partnership records produced allegations material to an accounting action.

Downey v. Lunney · filed 1974-11-20(a)

Accordingly, Alexander Grant & Co. shall appear for examination before trial by a person familiar with the facts giving rise to the allegations of the complaint at Special Term, Part II of this court,.room 05, lower level, on the third day of December, 1974 at 9:30 a.m.

Section 3101(a)(4) permits denial of requested nonparty depositions when the party identifies no relevant facts within the proposed witnesses’ exclusive knowledge.

Akari House, Inc. v. Irizzary · filed 1975-04-03(a)(4)

However, plaintiffs fail to demonstrate that the Starr and Goodman affidavits show any exclusive knowledge of facts bearing on the intention of the Legislature. No single specific fact is alleged by the plaintiffs to be within the exclusive knowledge of either Senator Goodman or Administrator Starr.

Section 3101(a)(3) and (4) require sufficient facts to justify taking depositions of former employees as nonparty witnesses.

Mazzuka v. Long Island Rail Road · filed 1976-10-05(a)(3), (a)(4)

In our opinion, the facts set forth in plaintiff’s moving papers were insufficient to justify Special Term’s grant of his application for a commission to take depositions, out of State, of two of appellant’s former employees (see CPLR 3101, subd [a], pars [3], ¿4]; 3108).

Section 3101(a)(4) permits pretrial examination of an attorney who has material and necessary information, subject to claims of privilege.

Planned Industrial Centers, Inc. v. Eric Builders, Inc. · filed 1976-01-26(a)(4)

In our opinion, appellant’s attorney is a hostile witness who possesses material and necessary information; plaintiff should therefore be permitted to examine him before trial (see CPLR 3101, subd [a], par [4]; Matter of Macku, 29 AD2d 539).

Section 3101(a)(4) requires a factual showing of necessity or other adequate special circumstances to depose a nonparty expert; a blanket assertion of necessity is insufficient.

Scaduto v. Himmel · filed 1977-04-14(a)(4)

Moreover, to employ CPLR 3101 (subd [a], par 4) in the manner sought by the use of a blanket assertion that the examination of an expert is "materially necessary for the defense of this law suit” without demonstrating the necessity, or other "adequate special circumstances” that would satisfy this court that they do indeed exist, requiring the invoking of the rule, would be a perversion of the true construction of the statute.

Section 3101(a) permits disclosure of the names of witnesses to an occurrence but protects the identities of witnesses to a condition or notice discovered through an opponent’s investigation.

Hennessy v. Benerofe · filed 1978-05-11(a)

Therefore, the names of witnesses to the occurrence should be supplied to the defendants. The request for names of potential witnesses as to condition and notice by the defendants was properly denied.

Section 3101 entitles a party to the names of active participants and eyewitnesses to an accident, including eyewitnesses who did not actively participate.

Tibodeau v. Salenger · filed 1978-06-22

A party is entitled to the name of an active participant in the incident and, also, the names of eyewitnesses to the accident who are not strictly active participants (see CPLR 3101).

Section 3101(d) limits pretrial examination of an opposing party’s expert to protect opinions and material prepared for litigation unless the required showing is made.

Cepin v. Cepin · filed 1978-12-04(d)

However, in our opinion, the deposition of an expert witness, even as to matters which are ostensibly purely factual in nature, creates a high risk that material prepared for litigation will be discovered without a prior showing as to the conditions set forth in CPLR 3101 (subd [d]). Therefore, it becomes necessary to set careful limits to the kind of information which may be elicited from an expert witness in an oral examination on his "factual observations”.

CPLR 3101(a)(4)’s special-circumstances requirement is satisfied when a party shows it needs a nonparty witness’s deposition to prepare fully for trial.

Catskill Center for Conservation and Development v. Voss · filed 1979-05-31(a)(4)

As for the requirement, pursuant to CPLR 3101 (subd [a], par [4]) of special circumstances necessary to permit disclosure of a nonparty witness, the mere showing by respondents’ attorney "that he needs such witness’s pretrial deposition in order to prepare fully for the trial should suffice as a 'special circumstance’ ”. ... Such need is adequately demonstrated in the moving affidavit.

Section 3101 permits discovery of the names and addresses of witnesses to alleged undue influence in a contested probate proceeding, but not demands for what each witness observed and when and where.

In re the Estate of O'Connell · filed 1978-09-19

This court holds that the same rationale applies equally as well in a contested probate proceeding where the issue will be the existence or nonexistence of alleged undue influence and the proponent seeks the names and addresses of all persons who are witnesses to the events alleged. ... However, the proponent’s demand goes beyond requesting the names of such witnesses and further requests what each of said witnesses observed at what time and place. To that extent the demand exceeds the limits of permissible discovery.

Section 3101 does not treat children who are subjects of a child protective proceeding as parties, but permits their examination as nonparty witnesses when adequate special circumstances exist.

In re Diane B. · filed 1978-10-30(a)

This court holds that a child is not a "party” to a child protective proceeding and is therefore not subject to the disclosure provisions of CPLR 3101 (subd [a], par [1]). ... Considering the ages of the witnesses, the crucial nature of their testimony, their apparent hostility and special knowledge of the facts, and the stepfather’s need to meaningfully prepare for trial, the court determines that there are adequate special circumstances to warrant an examination before trial of the three children who are the subject of this proceeding.

Section 3101(a) permits disclosure of the names and addresses of employees present at an incident when their identities are relevant as witnesses.

Auburn Extrusions, Inc. v. Auburn Armature, Inc. · filed 1980-02-20(a)

The order requiring disclosure of the names and addresses of plaintiff’s employees in its plant at the time of the power interruption was proper.

Section 3101(d) requires disclosure of witnesses to a dog's prior vicious propensities when their observations bear on liability, even if their identities were obtained in preparation for litigation.

O'Connor v. Larson · filed 1980-02-20(d)

While Special Term directed plaintiffs to supply defendant with the names and addresses of persons who witnessed the incident, it denied defendant’s request for the names and addresses of witnesses to the alleged prior vicious propensities exhibited by the dog, holding that this information was "material prepared for litigation” (CPLR 3101, subd [d]). Defendant appeals from this order. Special Term erred in denying disclosure of the names and addresses of these witnesses.

Section 3101 permits disclosure of the names and addresses of witnesses to notice or a relevant condition; their identities are neither attorney work product nor material prepared for litigation.

Hoffman v. Ro-San Manor · filed 1980-03-18

The discovery of witnesses, even though the result of the attorney’s zeal and investigative efforts, does not qualify as an attorney’s work product under subdivision (c). ... Nor do we believe that the names and addresses of witnesses qualify as material prepared for litigation.

Section 3101 requires disclosure of material and necessary admission witnesses’ identities; finding them through an attorney’s investigation does not make their names and addresses protected work product or material prepared for litigation.

Wolf v. Davis · filed 1981-02-25(c), (d)

Although any statement given to the plaintiffs by the “admission” witnesses would qualify as material prepared for litigation, the existence of the “admission” witness as distinguished from the witnesses’ statement is not something created by or for the plaintiffs or their attorneys. Such witnesses and such incidentals as their addresses, as well as their knowledge, are not the creation of a party “in preparation for litigation”, although the unearthing of the witnesses may well be the product of the attorney’s labors. ... The plaintiffs shall disclose to the defendant the names and addresses of all witnesses known to plaintiffs to whom defendant allegedly admitted striking the plaintiff’s bicycle, within 20 days after service of a copy of the order signed herewith upon plaintiff’s attorney.

Section 3101 permits disclosure of a nonparty patient’s name and address when the patient may have witnessed the alleged malpractice, even though the patient’s medical records are privileged.

King v. O'Connor · filed 1980-03-19

Application of CPLR 3101 requires disclosure in a will contest of the names and addresses of all persons who were witnesses to alleged undue influence (Matter of O’Connell, 96 Misc 2d 203). ... This court, however, directs the defendant Southside Hospital to furnish the said plaintiff and the defendants doctors the name and address of the patient occupying Room 206 at Southside Hospital at or about the time of admission of the plaintiff herein, within five days after receipt of a copy of this order, upon the basis that such nonparty may be a witness to the alleged occurrences of which plaintiff complains.

Section 3101(a)(4) generally does not permit deposition of former municipal officials when the municipality offers officials with adequate knowledge for examination.

Consolidated Petroleum Terminal, Inc. v. Incorporated Village of Port Jefferson · filed 1980-04-21(a)(4)

Therefore unless it becomes apparent that the knowledge of the proffered officials is inadequate, plaintiff is not entitled to depose the former trustees of the village’s board of trustees.

Section 3101(a)(4) permits examination of a nonparty witness when the requesting party needs the deposition to prepare fully for trial.

Jones v. Wissenbach · filed 1981-03-06(a)(4)

Special Term should have granted the motion to depose Beekman and Trooper Crandall. ... “As for the requirement, pursuant to CPLR 3101 (subd [a], par [4]) of special circumstances necessary to permit disclosure of a nonparty witness, the mere showing by respondents’ attorney ‘that he needs such witness’s pretrial deposition in order to prepare fully for the trial should suffice as a “special circumstance” ’ ”

Section 3101(a)(4) permits examination of a former architect as a witness when special circumstances warrant it.

Arena Construction Co. v. Town of Harrison · filed 1981-04-06(a)(4)

In view of the special circumstances present in this case, Special Term should have granted the alternative relief requested by the plaintiff and granted leave to examine the architect as a witness pursuant to CPLR 3101 (subd [a], par [4]) (see Rensselaer Polytechnic Inst. v Machnick Constr. Co., 19 AD2d 677).

Section 3101(a)(4) permits a party to seek disclosure from a nonparty witness by serving a subpoena and notice without first obtaining a court order.

McNulty v. McNulty · filed 1981-04-06(a)(4)

A party seeking disclosure from a nonparty witness need not move for a court order, but may proceed by serving a subpoena and notice (see CPLR 3101, subd [a], par [4]; 3106, subd [b]; 3107; Spector v Antenna & Radome Research Assoc. Corp., 25 AD2d 569; Ball v County of Monroe, 99 Misc 2d 97; Bush Homes v Franklin Nat. Bank of Long Is., 61 Misc 2d 495).

Section 3101(a)(4) permits an order requiring production when the parties share an insurer and that insurer retained the defendant’s counsel, because those facts establish special circumstances.

Di Fresco v. Starin · filed 1981-04-20(a)(4)

Turning to the merits, we hold that the fact that both the plaintiffs and the defendant are insured by the same carrier, viz., Allstate Insurance Company, and that defendant’s counsel was retained by Allstate, present adequate special circumstances under CPLR 3101 (subd [a], par [4]) for Special Term’s order requiring the defendant to produce the material requested.

An adverse forensic report does not by itself establish that its authors are hostile witnesses for discovery under the special-circumstances rule.

Feuerman v. Feuerman · filed 1982-02-22(a)(4)

Even if their report contains “negative conclusions” as to one of the parties, this does not constitute “hostility” for purposes of discovery under the “special circumstance rule” of CPLR 3101 (subd [a], par [4]).