The insurer represented the owner of the vehicle, defendant John Baglioli, at trial, but did not represent the driver of the vehicle, Keith S. Smith, who defaulted in this action. The answer interposed for the owner denied, inter alia, permissive use by the defendant driver at the time of the accident. There was no examination before trial taken of the defaulting driver.

Initially, issues of permissive use and liability were tried before this Court and a jury. After the plaintiff rested, the defendant brought in the driver of defendant's vehicle, at which point the plaintiff sought to have this testimony precluded because this defendant had defaulted and had not been examined before trial. After extensive argument, this Court ruled that with respect to the issue of liability,^[FN1] this witness' testimony would be precluded.

The taking of depositions of parties who appear in a civil is accomplished via notification to their respective attorneys. This simple procedural mechanism which is in very common practice, is not available where a pre-trial deposition is required of a non party witness, which in our case would include a defaulting party. The procedure for taking such depositions is considerably more cumbersome and less familiar. See CPLR § 3101(a)(4)Nonetheless, this procedure was available to the defendant, herein and its use would be more solicitous of the integrity of the civil justice system.

There is a strong policy consideration involved in this determination. Since, the defense of lack of permission is known to the insurer early on, the insurer could, in these cases, decide to appear only for the owner and not the driver. In many, if not most instances, this would leave the driver without counsel and thus in a position which would make his or her default fairly certain. This strategy would give a considerable procedural advantage to the defense who would, under circumstances such as our own, be able, unless curtailed, to call a witness who has never been deposed in derogation of civil litigation prerogatives or in the alternative to call a halt to all [*2]proceedings until a deposition has been taken. This would create a serious deficiency in the efficient processing of cases through the civil justice system

In light of these strong policy concerns and when balancing the equities, this court holds that the consequences for the failure to obtain this crucial discovery should fall at the feet of the party seeking to call this witness.^[FN2]

This constitutes the decision and order of the court.

J.S.C.

Decision Date: April 15, 2004