I. Statement Pursuant to CPLR § 2219 [a]

The Court has read the following e-filed documents listed on NYSCEF numbered 27-43 were read on Motion Sequence No. 001. The following papers were considered by the Court in connection with the motion by Plaintiff, Romeo Alexander Familia, seeking an order pursuant to CPLR §§ 2304 and 3103 quashing the Subpoena Ad Testificandum dated August 13, 2025, directed to non-party witness Dianne Romano, or, in the alternative, granting a protective order limiting the scope and conditions of any such deposition: the Notice of Motion, together with the Affirmation of Jessica Thual, Esq., the Affidavit of Dianne Romano, the Physician's Affirmation of Dr. Azher Siddiqi, and the annexed exhibits (NY St Cts Filing [NYSCEF] Doc Nos. 27—30); the Affirmations of Good Faith of Nicholas Gisonda, Esq. (NY St Cts Filing [NYSCEF] Doc Nos. 37—38); the Affirmation in Opposition of Nicholas Gisonda, Esq., with accompanying exhibits (NY St Cts Filing [NYSCEF] Doc No. 42); and the Reply Affirmation of Jessica Thual, Esq. (NYSCEF Doc. No. 43). Upon review of the foregoing submissions, and due deliberation having been had thereon, the Court renders the following decision and order.

This personal injury action arises from an alleged trip-and-fall accident that occurred on April 20, 2024, outside the premises known as 300 Cortelyou Avenue, Staten Island, New York, a property owned and managed by defendants 300 Cortelyou Realty Corp. and Fazij Cosaj. Plaintiff Romeo Alexander Familia claims he tripped and fell upon a metal plate and uneven surface on the premises while departing from the residence of his fiancée's mother, non-party Dianne Romano, who resides in Apartment B-2 at the same address. (NY St Cts Filing [NYSCEF] Doc No. 36 at 53-56).

Following joinder of issue, Defendants served upon Ms. Romano a Subpoena Ad Testificandum commanding her appearance for deposition. Plaintiff now moves to quash the subpoena or, alternatively, for a protective order limiting any deposition to remote testimony of no more than sixty minutes, with frequent breaks, the presence of a caregiver, and immediate termination upon any sign of medical distress. (NY St Cts Filing [NYSCEF] Doc No. 34)

In support of the motion, Plaintiff submits the Affirmation of Dianne Romano, who avers she is seventy-one years old, suffers from chronic respiratory illness requiring continuous oxygen therapy, rarely leaves her home, and becomes short of breath during normal conversation. (NY St Cts Filing [NYSCEF] Doc No. 29). The motion is further supported by the Affirmation of Dr. Azher Siddiqi, Ms. Romano's treating physician for twenty years, who opines that compelling Ms. Romano to testify, "even by remote means", would pose a substantial risk to her health, including respiratory distress, oxygen desaturation, dizziness, or exhaustion. (NY St Cts Filing [NYSCEF] Doc No. 30). Dr. Siddiqi concludes that she is medically incapable of [*2]tolerating a conventional deposition and that, if testimony were required, it should be limited to no more than forty-five to sixty minutes, conducted remotely with frequent breaks and caregiver supervision. (see id).

Defendants oppose the motion, asserting that it is procedurally defective under 22 NYCRR § 202.7 [a], for lack of a good-faith affirmation; that the subpoena satisfies CPLR § 3101 [a] [4]'s notice requirement; and that Ms. Romano's testimony is relevant to issues of notice and the condition of the accident site. Defense counsel further avers that Defendants have agreed to abide by the conditions set forth in Dr. Siddiqi's affirmation and requests, in the alternative, that the Court appoint a referee pursuant to CPLR § 3104 [a] to supervise the deposition.

Plaintiff's Reply counters that judicial intervention is necessary given the documented medical danger to Ms. Romano, that the subpoena is facially defective and unduly burdensome, and that Defendants' request for a referee is procedurally improper and substantively irrelevant.

A. The Good-Faith Requirement

Defendants first contend that the motion is procedurally defective for failure to include an affirmation of good faith under 22 NYCRR § 202.7 [a]. That rule, however, is intended to deter needless discovery motion practice in matters capable of resolution through consultation between counsel. Here, Plaintiff seeks to prevent enforcement of a subpoena upon a seventy-one-year-old non-party witness whose treating physician attests that compliance could endanger her health. This is not a routine discovery disagreement but a question of medical incapacity implicating the Court's protective powers under CPLR § 3103 [a].

Where the discovery dispute could not be resolved without court intervention, courts have excused failure to comply with 22 NYCRR § 202.7 [a]. (see Moran v Grand Slam Ventures, LLC, 221 AD3d 994 [2d Dept 2023]; Capacity Group of NY, LLC v Duni, 186 AD3d 1482 [2d Dept 2020]; Baulieu v Ardsley Assoc., L.P., 85 AD3d 554 [1st Dept 2011]; N. Leasing Sys., Inc. v Estate of Turner, 82 AD3d 490 [1st Dept 2011]; Carrasquillo ex rel. Rivera v Netsloh Realty Corp., 279 AD2d 334 [1st Dept 2001], see also, Loeb v Assara New York I L.P., 118 AD3d 457 [1st Dept 2014] [The Court found that even though plaintiff's motion papers were technically noncompliant with 22 NYCRR 202.7 [c], the record established that plaintiff's counsel attempted on numerous occasions, both in and out of court, to resolve the outstanding discovery issues with defendants before filing the motion to strike the answer. The court concluded that "any further attempt to resolve the dispute non-judicially would have been futile"]).

In the case at bar, defendant's counsel did not submit an affirmation that they conferred with opposing counsel in good faith to resolve the motion to quash; however, contrary to plaintiff's contentions, it is not, under the facts and circumstances presented, fatally defective for defendant not to submit an attorney's affirmation attesting to a good-faith pre-motion attempt to resolve the dispute with the plaintiff. The issue had been raised on at least two occasions during compliance conferences with the court, and there was no question, that the only way to resolve the issue, would be with judicial intervention spurred by motion practice, so that proof of the medical issue of Ms. Romano could be presented to the court in admissible format. The Court therefore finds that the absence of a good-faith affirmation does not preclude judicial review.

B. Facial Sufficiency Under CPLR § 3101 [a] [4]

CPLR § 3101 [a] [4] requires that a subpoena directed to a non-party "state the [*3]circumstances or reasons such disclosure is sought." The Court of Appeals, in Matter of Kapon v Koch (23 NY3d 32 [2014]), emphasized that this requirement is not perfunctory; it is essential to permit meaningful review and to safeguard nonparties from unwarranted intrusion.

The subpoena at issue merely commands Ms. Romano to appear "to testify with respect to all matters relevant," without articulating any specific subject, reason, or nexus to the claims and defenses. Such language is generic and fails to satisfy the statutory mandate. Accordingly, the subpoena is facially defective and subject to being quashed on that basis alone.

C. Cumulative Testimony and Limited Relevance

Even were the subpoena facially sufficient, the testimony sought is cumulative and of negligible probative value. Ms. Romano is neither a party to the action nor connected to the ownership, management, or maintenance of the premises. Her daughter and Plaintiff have already provided sworn testimony concerning the same conditions and complaints. Defendants have identified no unique or indispensable knowledge that Ms. Romano alone possesses. Speculation that she "may have sat near" or "may have observed" the alleged defect is insufficient to justify the burden of her deposition, particularly considering her medical fragility.

D. Undue Hardship and Medical Risk Under CPLR § 3103 [a]

Under CPLR § 3103 [a], the Court may issue a protective order "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice." This broad authority plainly encompasses physical endangerment.

Dr. Siddiqi's medical affirmation is uncontroverted. It establishes that compelling Ms. Romano to testify, even remotely, would risk serious respiratory compromise. Her affidavit corroborates that sustained speaking leaves her lightheaded and fatigued. The Court finds these attestations credible and compelling. Compliance with the subpoena would impose an undue hardship and a dangerous physical burden within the meaning of the statute.

Although Defendants express willingness to adhere to certain protective measures, those safeguards cannot neutralize the underlying medical risk. The statute does not require that a non-party risk her health to provide testimony of marginal relevance. The appropriate remedy is therefore complete quashal.

E. Request for Appointment of a Referee

Defendants' request for appointment of a referee under CPLR § 3104 [a] is DENIED. That provision contemplates supervision of disclosure where disclosure itself is proper but requires monitoring due to hostility, complexity, or abuse. It does not apply where the subpoena is substantively defective, and compliance would constitute undue hardship. Additionally, the relief was not sought by cross-motion and thus is procedurally improper.

For all the foregoing reasons, the Court finds that Plaintiff has satisfied the standards of CPLR §§ 2304 and 3103 [a]. The subpoena directed to non-party Dianne Romano is facially defective under CPLR § 3101 [a] [4], seeks testimony that is cumulative and of minimal relevance, and would impose an unreasonable and medically dangerous burden upon a non-party witness.

Based upon the foregoing, it is hereby:

ORDERED that Plaintiff's motion is GRANTED; and it is further

ORDERED that the Subpoena Ad Testificandum dated August 13, 2025, directed to non-party Dianne Romano, is QUASHED in its entirety; and it is further

ORDERED that Defendants' request for the appointment of a referee pursuant to CPLR § 3104 [a] is DENIED as moot; and it is further

ORDERED that the parties shall proceed with discovery consistent with this Decision and Order.

This constitutes the Decision and Order of the court. The clerk shall enter judgment accordingly.