         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
561
CA 10-01314
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


CLARENCE F. RIORDAN AND JEANNIE RIORDAN,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

CELLINO & BARNES, P.C., THE BARNES
FIRM, P.C., AND MICHAEL J. COOPER,
DEFENDANTS-RESPONDENTS.


PAUL WILLIAM BELTZ, P.C., BUFFALO (DEBRA A. NORTON OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

HURWITZ & FINE, P.C., BUFFALO (JODY E. BRIANDI OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered November 20, 2009 in a legal malpractice action.
The order, among other things, granted that part of defendants’ motion
seeking a protective order.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of defendants’
motion seeking a protective order and as modified the order is
affirmed without costs.

     Memorandum: Plaintiffs commenced this legal malpractice action
seeking damages allegedly resulting from the negligence of defendants
in their representation of Clarence F. Riordan (plaintiff) in the
underlying Labor Law and common-law negligence action. Plaintiff
commenced the underlying action seeking damages for injuries that he
sustained when he was working on the reconstruction of a school
building in East Rochester. Defendants, however, failed to serve a
timely notice of claim against East Rochester Schools (see Matter of
Riordan v East Rochester Schools, 291 AD2d 922, lv denied 98 NY2d
603), and a jury returned a verdict of no cause of action with respect
to plaintiff’s claims against the remaining defendant in the
underlying action. Defendants admit that they were negligent in
failing to serve the notice of claim in a timely manner, but they
contend that they are not liable for legal malpractice on the ground
that the underlying action against East Rochester Schools has no
merit.

     Plaintiffs served a notice seeking to take the depositions of two
attorneys employed by defendants Cellino & Barnes, P.C. and The Barnes
                                 -2-                           561
                                                         CA 10-01314

Firm, P.C. and who represented plaintiff in the underlying action, and
defendants moved for, inter alia, a protective order in response to
such notice. Relying upon our decision in Long v Cellino & Barnes,
P.C. (59 AD3d 1062, 1063), Supreme Court granted that part of the
motion seeking a protective order. We agree with plaintiffs, however,
that they are entitled to depose the attorneys who represented
plaintiff in the underlying action for approximately eight years,
despite defendants’ admission of negligence. We therefore modify the
order accordingly. We further conclude that, to the extent that our
decision in Long holds otherwise, it is no longer to be followed.

     Pursuant to CPLR 3101 (a) (1), “[t]here shall be full disclosure
of all matter material and necessary in the prosecution or defense of
an action . . . by a party[] or . . . employee of a party . . . .”
That provision has been liberally construed to permit discovery “of
any facts bearing on the controversy [that] will assist preparation
for trial by sharpening the issues and reducing delay and prolixity”
(Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406; see Montalvo v
CVS Pharmacy, Inc., 81 AD3d 611; Matter of Southampton Taxpayers
Against Reassessment v Assessor of Vil. of Southampton, 176 AD2d 795,
796). “The test is one of usefulness and reason, and CPLR 3101 (a)
should be construed to permit discovery of testimony [that] is
sufficiently related to the issues in litigation to make the effort to
obtain it in preparation for trial reasonable” (Southampton Taxpayers
Against Reassessment, 176 AD2d at 796 [internal quotation marks
omitted]). The depositions sought by plaintiff satisfy that test, and
defendants failed to meet their burden of making an “appropriate
factual showing” that they are entitled to a protective order limiting
discovery (Willis v Cassia, 255 AD2d 800, 801; see State of New York v
General Elec. Co., 215 AD2d 928, 929).




Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
