In this case, plaintiff Lisa Fiato alleges that she was fired from her position as the Director of Public Policy and Special Projects for defendant New York State Conference of Local Mental Hygiene Directors, Inc. ("CLMHD") due to an improper denial of a reasonable work accommodation needed for her chronic medical condition ^[FN1] (Amended Complaint ¶¶ 5, 13, [*2]20-88). Plaintiff asserts causes of action for (1) discrimination; (2) failure to provide reasonable accommodation by permitting Fiato to work from home; and (3) retaliation (id. ¶¶ 80-101). In their verified answer to the amended complaint ("Answer"), CLMHD and the individual defendants assert various affirmative defenses, including that CLMHD had no obligation to grant any request for a work accommodation that was not reasonable or caused CLMHD undue hardship, and that plaintiff failed to mitigate her damages (Answer ¶¶ 118, 120).

The matter is now before me on an application brought by plaintiff via Order to Show Cause to quash a testimonial subpoena. The dispute at issue arises out of plaintiff's employment by Luizzi Companies in Watervliet, New York ("Luizzi" or "the Company") following her termination by CLMHD. Defendants issued a subpoena for the production of records from Luizzi concerning plaintiff, including her personnel file, any record of disciplinary actions and requests by Ms. Fiato for accommodations and responses to such requests. Plaintiff objected to such discovery and, at a court conference on March 3, 2025, the parties agreed to narrow the subpoena, as reflected in my March 4 letter/order, to seek the following documents:

"a. all documents regarding the circumstances that resulted in Liza Fiato's separation from employment with Luizzi Property Management Corp. ("Luizzi"), whether by resignation or termination.

b. All documents relating to any request by Ms. Fiato for an accommodation of her disabilities, and any action taken by Luizzi to grant her any such accommodation" (NYSCEF Doc. No. 82).

In response to the narrowed subpoena duces tecum, by letter dated March 18, 2025 from owner Peter Luizzi, the Company advised that there are no documents relating to the term or end of Fiato's employment with Luizzi Property Management Corporation (see NYSCEF Doc. No. 84). Mr. Luizzi further stated the following:

"Lisa Fiato's sister, Laura Luizzi is my wife. As brother-in-law to Lisa Fiato,both Laura and I are well aware of Lisa Fiato's disabilities and therefore did not require documentation relating to any requests to accomniodate such disabilities" (id.).

Following this letter, on March 20, 2025 defendants issued a subpoena ad testificandum for the deposition of Mr. Luizzi (NYSCEF Doc. No. 85). Specifically, the subpoena states that defendants seek Mr. Luizzi's testimony regarding "(a) the circumstances of Lisa Fiato's separation from employment with [Luizzi], and (b) any request by Lisa Fiato for an accommodation of her disabilities, as well as any action taken by [Luizzi] to grant her any such accommodation"^[FN2] (id.).

By Order to Show Cause ("OTSC") dated March 27, 2025, plaintiff moved pursuant to CPLR 2304 and 3103 for a protective order barring defendants from seeking Fiato's employment records with Luizzi, and quashing the subpoena issued on Peter Luizzi for his deposition. In support of her motion, plaintiff argues that the circumstances of her subsequent employment is neither relevant nor likely to lead to the discovery of legitimate evidence (Memorandum of Law in Support of Plaintiff's Motion for a Protective Order and to Quash Subpoena, dated March 25, 2025 ["Pl MOL"] 7-12). Specifically, Fiato asserts that in seeking discovery on events that post-dated her termination, defendants "are attempting to justify their decision to deny reasonable accommodation to Ms. Fiato based on circumstances involving her subsequent employment that were not present at the time Defendants' decision to deny Ms.Fiato's accommodation was made" (id. at 9).

In opposition, defendants argue that plaintiff failed to meet her burden of establishing that the subpoena ad testificandum served on Peter Luizzi seeks utterly irrelevant information, and thus it should not be quashed (Memorandum of Law in Opposition to Plaintiff's Order to Show Cause for a Protective Order and to Quash Subpoena, dated April 4, 2025 ["Def MOL"] 1). Defendants further state that they are seeking only "information related to Plaintiff's request to Luizzi for accommodations, and any accommodations she received, on the ground that it relates to Plaintiff's disability and her duty to mitigate her damages" (id. at 5).

As explained by defendants, given that plaintiff requested that CLMHD accommodate her medical condition by allowing her to work from home, "[w]hether Plaintiff requested the same or similar accommodation from Luizzi is relevant" to her claims in this action (id. at 6). According to CLMHD, the job Fiato performed for it and Luizzi required plaintiff to have a schedule and perform some in-office work, and thus it is reasonable for defendants to seek discovery on the type of accommodations that Luizzi provided — especially since Luizzi's response to the document subpoena implicitly confirmed that Fiato requested and received work accommodations, but such were not documented (id. at 7). CLMHD also takes the position that if plaintiff was not able to work full-time at Luizzi due to her medical condition, she would also not have been able to continue working at CLMHD, which would be relevant to Fiato's claim for [*3]damages and her duty to mitigate such (id. at 8).

In light of the parties' agreement to the narrowing of the documents sought in the subpoena duces tecum served on Luizzi as reflected in the March 4 Order, and Luizzi's letter response that no such documents exist, the portion of plaintiff's motion seeking a protective order against further document discovery from the Company is moot ^[FN3] (see Funti v Andrews, 238 AD3d 666 [1st Dept 2025] [non-parties' compliance with subpoenas rendered appeal of denial of motion to quash moot]; see also D.P. v S.P., 82 Misc 3d 1218[A], *2, n 1 [Sup Ct Westchester County 2024] [motion to quash found moot where party had already responded to subpoena duces tecum]; Cherfas v Wolf, 20 Misc 3d 1118[A], *2 [Sup Ct Kings County 2008] ["opportunity to challenge a subpoena by a motion to quash or vacate is no longer available once the party has complied with the subpoena]). Therefore, the only remaining portion of the motion before me is that seeking to quash the subpoena ad testificandum served on Mr. Luizzi. Whether a reviewing court grants or denies such a motion, "rests within [its] sound discretion" (Viglietta v Asbestos Corp Ltd, 227 AD3d 1516, 1516 [4th Dept 2024]).

As previously noted, defendants issued the second subpoena seeking to depose Mr. Luizzi regarding (a) the circumstances of Lisa Fiato's separation from employment from the Company, and (b) any request by Lisa Fiato for an accommodation of her disabilities, as well as any action taken by the Luizzi company to grant her such accommodation. In moving to quash a subpoena ad testificandum served on a non-party, 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' " (Kapon v Koch, 23 NY3d 32, 34, 38-39 [2014]; see also Gihon LLC v 501 Second St., LLC, 46 Misc 3d 1205[A], *3 [Sup Ct Kings County 2015] [denying motion to quash where movant failed to meet its burden]). If the movant carries this burden, the party seeking discovery "must then establish that the discovery sought is 'material and necessary' to the prosecution or defense of an action, i.e., that it is relevant" (Kapon, 23 NY3d at 34).

Whether the discovery is "material and necessary" must "be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (id., citing Allen v Crowell-Collier Publishing Co., 21 NY3d 403, 406 [1968]). Specifically, under CPLR 3101(a)(4), "there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: . . . (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required." Thus, "so [*4]long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty" (Kapon, 23 NY3d at 38; see also Kim v White & Case LLP, 216 AD3d 408, 409 [1st Dept 2023] [motion to quash subpoena served on non-party should have been denied because material sought was relevant to affirmative defenses]).

In her supporting papers, plaintiff has not established that the deposition sought of Peter Luizzi would be "utterly irrelevant" to this action or that the "futility of the process to uncover anything legitimate is inevitable or obvious." Rather, plaintiff has placed at issue the question of whether the accommodation she sought from CLMHD to permit her to work from home was reasonable, or posed a hardship for defendant (see Amended Complaint ¶¶ 88-90). Thus, any request by Fiato to Luizzi for an accommodation due to her disabilities, as well as her ability to perform work with or without such accommodation, would be relevant to the question of whether the accommodations she sought from CLMHD were necessary and reasonable (see Eben v Mount Sinai Saint Lukes Hosp.,2020 US Dist. LEXIS 208056, *2 [SD NY Nov 6, 2020] [granting motion to compel production of employment records covering period after her employment with defendant had ended, where such records "are relevant to: (i) Plaintiff's claim for damages and his duty to mitigate; and (ii) whether Plaintiff was capable of performing the essential functions of his job . . . with or without a reasonable accommodation"]; Soqui v England Logistics, Inc., 2025 WL 895310, *2 [D Utah March 24, 2025] [denying motion to quash and finding that discovery related to plaintiff's work accommodations requested or received from subsequent employer are relevant to claim for failure to accommodate]; Gargas v Estes Express Lines, 2021 WL 6000038, *2 [ND Ohio Dec 20, 2021][on claim for failure to accommodate, defendant employer was entitled to investigate potential defenses to these claims, including to what extent plaintiff has [or has not] performed similar work without accommodation]).

For example, if plaintiff was able to perform her work for Luizzi while in the office, such information would certainly be relevant to whether her request to CLMHD to work from home was an accommodation it was required to provide (see Gargas, supra, at *3 [defendant "is entitled to investigate potential defenses to these claims, including, to what extent [plaintiff] has (or has not) performed similar work without accommodation"]). On the other hand, if plaintiff could not physically work for Luizzi even with the kind of accommodations she sought from defendants, this could be relevant to her ability to have performed work for CLMHD with a reasonable accommodation. Moreover, any statements made by plaintiff to Luizzi about her health situation and her ability to perform various tasks is relevant to the accuracy and consistency of what she told CLMHD. As defendants explain: "any representations Plaintiff made about her disability and/or limitations, as well as any requests for accommodation based on her disability or limitations, to Luizzi Corp. are relevant because it bears on the medical information provided to CLMHD" (Memorandum of Law in Opposition to Plaintiff's Order to Show Cause 6).

The circumstances of plaintiff's departure from Luizzi are also material to the issue of mitigation of damages. Whether Ms. Fiato left her employment with Luizzi because she decided to forego a job that was available, was terminated for cause, could no longer work with the company because of its own situation, or for some other reason, is clearly relevant to whether or not mitigation was available to her via this employer (see Mounira Al Hmoud v Altice USA, Inc., 2022 US Dist. LEXIS 26954 [ED NY Feb. 15, 2022] [where a "plaintiff is alleging wrongful termination, the circumstances leading up to the end of her subsequent employment relationship [*5]may bear on plaintiff's mitigation efforts and thus impact her entitlement to an award of back pay or front pay"]). While plaintiff argues that the termination of subsequent employment is relevant only if it is substantially equivalent (see Pl MOL 10), this is an issue to be explored through discovery, not a ground on which I may find, based on plaintiff's say so, that discovery is unnecessary.^[FN4]

While plaintiff argues that defendants are not entitled to discovery from her subsequent and current employers (Pl MOL ¶¶ 5, 8), the caselaw makes clear there is no such black line rule. Indeed, plaintiff provides no definitive authority for this proposition that post-dates the controlling Court of Appeals decision in Kapon. Plaintiff's reliance on Outlaw v Liberty Chevrolet, Inc. (2021 NY Misc. LEXIS 5244, *7 [Sup Ct Bronx County 2021]) is misplaced, as this case involved a claim for discrimination based on race and gender, and the subpoena served on the non-party's subsequent employer thus did not seek any information concerning reasonable accommodations for an alleged disability. Rather, defendant's argument in that case was that discovery from other employers could show plaintiff's "propensity for inadequate work performance," which absent evidence of some reason to believe such was the case would constitute a "fishing expedition" (id. at *8; see also Morse v Fidessa Corp., 2018 WL 5267155 [Sup Ct New York County 2018], cited at Pl MOL 8-9 [defendants may not use subpoena on other company to determine whether plaintiff engaged in wrongdoing "more than two years after plaintiff's termination," since "[d]efendants must rely on the knowledge they possessed at the time they fired plaintiff"]). But in this case, a central question is whether plaintiff needed a particular accommodation to carry out her work, and whether such accommodation would have allowed her to perform her responsibilities if it had been provided. This is not an argument based on propensity, but on the medical limitations on plaintiff's ability to do the work required by her position with or without accommodation. Discovery on such matters from Luizzi is indeed material, as explained above.

Lastly, plaintiff contends that the information sought via deposition of Mr. Luizzi is available anyway through the deposition to be conducted of Ms. Fiato by co-defendant NYSAC (see Pl MOL 9). But such consideration provides no basis to sustain a motion to quash here. As a general rule, it is not the burden of the subpoening party to show that the testimony sought is non-duplicative, as section 3101(a)(4) imposes no requirement that the subpoenaing party to "demonstrate that it cannot obtain the requested disclosure from any other source" (see Kapon, 23 NY3d at 38). True, the Court has discretion to limit disclosure on the ground that it would be unduly duplicative or excessively burdensome (see Forman v Henkin, 30 NY3d 656, 662 [2018] [litigants may be protected "against unnecessarily onerous application of the discovery statutes," and "competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party"] [citations omitted]; see also CPLR 3103[a] [protective order may be issued "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts"]; In re Williamson, 261 AD2d 147, 147 [1st Dept 1999] [interrogatories struck as palpably improper when they "are duplicative of information that had already been obtained through earlier disclosure"]). But these principles do not warrant a protective order here. For one thing, the disclosure sought by defendants is not particularly burdensome. It is limited to a single deposition of Peter Luizzi, plaintiff's brother-in-law and former employer, on two specific and limited areas: the circumstances of Lisa Fiato's separation from employment with Luizzi, and any request by Lisa Fiato for an accommodation of her disabilities and the actions take in response to such (NYSCEF Doc. No. 85). Indeed, these two categories were agreed to by both parties in relation to the document subpoena that was served on Luizzi and, given that Mr. Luizzi asserted in response to the subpoena duces tecum that no such documents exist but accommodations were provided, it is reasonable for defendants to seek such information via deposition.

The fact that plaintiff may be asked the same questions on her deposition does not warrant a prohibition by the Court against seeking this information from any other source. Plaintiff's prior employer may have different information, or a different perspective than she does, and there is no rule that a party may only take the deposition of one individual that possesses relevant information regarding any particular aspect of the case (cf. Watts v Peekskill Bell. 147 AD2d 838 [3d Dept 1989] [upholding denial of protective order barring additional depositions of non-party witnesses as appropriate exercise of Court's discretion where it was "apparent that these additional witnesses could provide relevant and material evidence"]). In addition, given that Luizzi is a former employer, any potential harm to Fiato's relationship with this company is much less consequential than might be the case when seeking discovery from a current non-party employer (see Soqui, supra; see also supra n 4). Finally, the remaining deposition of Ms. Fiato is to be taken by NYSAC, since it was not a party at the time of her original deposition, and thus not a means by which the other defendants can seek information.

Accordingly, it is hereby

ORDERED that plaintiff's motion, brought on by OTSC dated March 27, 2025, is denied in its entirety; and it is further

ORDERED that, in accordance with defendants' letter request dated June 18, 2025, and to ensure that any information obtained from the deposition of Mr. Luizzi will be available in any summary judgment filings, all defendants' time to respond to plaintiff's summary judgment motion and file any cross motion is extended to 45 days from the date of the electronic filing of this Decision and Order.

This Decision & Order is being electronically filed with the Clerk's Office, with copies simultaneously e-mailed to both counsel. The electronic filing of the Decision & Order shall not constitute Notice of Entry, and counsel is not relieved from the applicable provisions of the CPLR respecting to filing and service of Notice of Entry.

1. Order to Show Cause, filed March 31, 2025, with Affirmation of Good Faith in Suport of Motion for a Protective Order of Carlo A.C. De Oliveira, Esq., dated March 25, 2025, with Memorandum of Law in Support of Plaintiff's Motion for a Protective Order and to Quash Subpoena, dated March 25, 2025.

2. Memorandum of Law in Opposition to Plaintiff's Order to Show Cause for a Protective Order and to Quash Subpoena, dated April 4, 2025.

3. Reply Memorandum of Law in Support of Plaintiff's Motion for a Protective Order to Quash Subpoena, dated April 7, 2025.