Espinoza v City of New York
2014 NY Slip Op 00088 [113 AD3d 590]
January 8, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 5, 2014


Diki Elias Espinoza, Respondent,
v
City of New York et al., Appellants.

[*1] Jeffrey D. Friedlander, Acting Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Shannon Colabrese of counsel), for appellants.

Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Ash, J.), dated November 5, 2012, which granted that branch of the plaintiff's motion which was to compel the defendants to produce an additional witness for a deposition.

Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs, and that branch of the plaintiff's motion which was to compel the defendants to produce an additional witness for a deposition is denied.

A municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for a deposition (see Douglas v New York City Tr. Auth., 48 AD3d 615, 616 [2008]; Simpson v City of New York, 10 AD3d 601, 603 [2004]; Pomilio-Young v City of New York, 7 AD3d 600 [2004]). A plaintiff may demand the production of additional witnesses upon a showing that (1) the representative already deposed had insufficient knowledge or was otherwise inadequate, and (2) there is a substantial likelihood that the person sought for deposition possesses information which is material and necessary to the prosecution of the case (see Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d 930, 933 [2008]; Douglas v New York City Tr. Auth., 48 AD3d at 616; Del Rosa v City of New York, 304 AD2d 786 [2003]).

Here, the plaintiff deposed the defendant Edward M. Rosovich, a police officer and employee of the municipal defendants who was involved in the subject accident. The plaintiff failed to demonstrate that the individual defendant had insufficient knowledge of the facts or was otherwise inadequate (see Douglas v New York City Tr. Auth., 48 AD3d at 616; cf. Zollner v City of New York, 204 AD2d 626, 627 [1994]). Moreover, even if the witness proposed by the plaintiff possesses additional information regarding his investigation, conclusions, and recommendation, the plaintiff has not shown that such evidence is discoverable under the circumstances of this case (see Pisano v Door Control, 268 AD2d 416, 417 [2000]; Bischoff v City of New York, NYLJ, June 12, 2007 at 23, col 1 [Sup Ct, Kings County 2007]). Skelos, J.P., Dickerson, Lott and Austin, JJ., concur.