SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

760 

CA 14-01644 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ. 

 

MICHAEL E. BLACK AND BRUNA BLACK, AS 

CO-EXECUTORS OF THE ESTATE OF PATRICK M. 

BLACK, DECEASED, PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

ADWAIT ATHALE, ET AL., DEFENDANTS, 

AND COUNTY OF ERIE, DEFENDANT-APPELLANT.

 

MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

LOTEMPIO & BROWN, P.C., BUFFALO (BRIAN J. BOGNER OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (Joseph R.

Glownia, J.), entered May 16, 2014. The order, insofar as appealed

from, granted that part of the motion of plaintiffs seeking an order

compelling defendant County of Erie to produce two individuals for 

depositions. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs’ decedent was injured in a one-vehicle

accident on North Forest Road in the Town of Amherst when the vehicle

in which he was a passenger left the roadway and struck a utility

pole. Plaintiffs thereafter commenced this action, alleging, inter

alia, that defendant County of Erie (County) negligently maintained

the section of North Forest Road where the accident occurred. In

response to plaintiffs’ discovery demands, the County produced two

employees for depositions. Following those depositions, the County

made additional document disclosures to plaintiffs, and plaintiffs

thereafter sought to re-depose one of the employees (hereafter,

employee) and to depose the County Commissioner of Public Works

(Commissioner). When the County refused to produce those individuals,

plaintiffs moved, inter alia, to strike the County’s answer or to

compel the re-production of the employee and the production of the

Commissioner for depositions. Supreme Court granted plaintiffs’

motion in part, ordering the County to re-produce the employee for a

deposition regarding documents produced by the County after his

initial deposition, and ordering the County to produce the

Commissioner for a deposition. We now affirm.
-2- 760 

CA 14-01644 

“A trial court has broad discretion in supervising the discovery

process, and its determinations will not be disturbed absent an abuse

of that discretion” (Finnegan v Peter, Sr. & Mary L. Liberatore Family

Ltd. Partnership, 90 AD3d 1676, 1677). We note with respect to the

employee that he admitted at his initial deposition that he could not

recall specific details relevant to plaintiffs’ theory of the County’s

liability without reviewing the documents that subsequently were

produced by the County. We thus conclude that the court did not abuse

its discretion in directing the further deposition of the employee

concerning those documents.

We likewise conclude that the court did not abuse its discretion

in directing the County to produce the Commissioner for a deposition. 

“Although 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, a plaintiff may demand production

of additional witnesses when (1) the officers or employees already

deposed had insufficient knowledge or were 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” (Brevetti v City of New York, 79 AD3d

958, 958-959). Here, the record establishes that the two employees

previously produced by the County have at most a general understanding

of the reconstruction project contemplated by the County with respect

to the section of road where the accident occurred and the reasons

that the reconstruction project was abandoned, while the Commissioner

has peculiar and specific knowledge about that project and the

decision-making process pursuant to which it was abandoned. We

therefore conclude that plaintiffs met their burden of demonstrating

that the employees previously produced by the County “did not possess

sufficient knowledge of the relevant facts or [were] otherwise

inadequate” (Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54

AD3d 930, 933). 

Entered: June 19, 2015 Frances E. Cafarell

Clerk of the Court