        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

936
CA 13-00119
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, AND WHALEN, JJ.


THOMAS BURKE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF ERIE, DEFENDANT-APPELLANT.


HODGSON RUSS LLP, BUFFALO (RYAN J. LUCINSKI OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CANTOR, DOLCE & PANEPINTO, P.C., BUFFALO (JONATHAN M. GORSKI OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal, by permission of the Appellate Division of the Supreme
Court in the Fourth Judicial Department from an order of the Supreme
Court, Erie County (Tracey A. Bannister, J.), entered October 12,
2012. The order, among other things, denied the motion of defendant
to compel and for a protective order.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion to
compel a second deposition of the nonparty witness and as modified the
order is affirmed without costs.

     Memorandum: In this Labor Law action, plaintiff’s counsel served
a nonparty witness subpoena on the only eyewitness to the accident
demanding that he appear for a deposition. The nonparty witness had
commenced a separate Labor Law action arising from a different
construction site accident and retained plaintiff’s counsel to
represent him in that lawsuit. Plaintiff’s counsel asked the nonparty
witness various questions about plaintiff’s accident, and then
defendant’s counsel asked the nonparty witness questions that
established that plaintiff and the nonparty witness were both
carpenters in the same union, they both had pending lawsuits involving
the same employer, and they both retained the same attorneys. When
defendant’s counsel asked if plaintiff was going to be a witness in
the nonparty witness’s case, plaintiff’s counsel objected and directed
the nonparty witness not to answer. Plaintiff’s counsel further
objected and directed the nonparty witness not to answer when
defendant’s counsel asked the nonparty witness whether plaintiff’s
counsel was representing him in connection with the deposition.
Thereafter, the deposition was discontinued.

     Defendant moved, inter alia, for an order compelling a second
deposition of the nonparty witness and prohibiting plaintiff’s counsel
                                 -2-                           936
                                                         CA 13-00119

from interfering with that deposition. Supreme Court denied the
motion, and we now modify the order by granting that part of the
motion seeking to compel a second deposition of the nonparty witness.
The questions asked by defendant’s counsel were relevant with respect
to the nonparty witness’s bias or motive (see generally CPLR 3101 [a];
Salm v Moses, 13 NY3d 816, 818). Thus, the questions should have been
“ ‘freely permitted and answered’ ” (Roggow v Walker, 303 AD2d 1003,
1004). In any event, we agree with defendant that it is entitled to a
second deposition of the nonparty witness in order to cross-examine
the witness regarding the circumstances of the accident.




Entered:   October 4, 2013                     Frances E. Cafarell
                                               Clerk of the Court
