Cohen v. Mario Industries Inc., et al.

(Sup. Ct. Nassau Cty. 9/30/03)

We represented: Plaintiff

Anthony L. Parga, J.S.C.

DECISION and ORDER Upon the foregoing papers, the motion [Sequence #013] by defendant Mario Industries Inc. ("Mario") for an order striking plaintiffs' expert response, the motion [Sequence #014] by the plaintiffs for an order quashing certain subpoenas, the motion [Sequence #015] by non-party Cohen Brothers Equities, Ltd. and second third-party defendant Edward Cohen for an order quashing subpoenas directed at them, the motion [Sequence #017] by the plaintiffs for an order quashing subpoenas served on non-parties Hanington Engineering Consultants ("Hanington") and Forcelli Curto Schwartz Mineo Carlino & Cohn ("Forcelli") and the motion [Sequence #016] for an order granting defendant Mario leave to reargue its prior cross-motion for summary judgment, are consolidated for disposition and decided as follows:

This is an action to recover damages sustained to plaintiffs' home at 103 North Cliff Drive, Centre Island, as a result of a fire at 11:40 P.M. on August 12, 1998.

The motion [Sequence #013] by defendant Mario for an order striking plaintiffs' expert responses and precluding John McGowan from testifying at trial is denied. The responses to the movant's CPLR 3101(d) notice are adequate.

The motion [Sequence #014] by the plaintiffs for an order quashing subpoenas directed at Philip Teplen, Esq., Kean Development Co./Kean Development Corp. and Hanington Engineering Consultants, Inc., are granted to the extent indicated in the parties' stipulation dated September 4, 2003. The branch of the plaintiffs' motion for an order quashing the subpoena served on the Village of Centre Island is denied as moot since it is withdrawn. The branch of the plaintiffs' motion for an order quashing the subpoena duces tecum served on Thomas Russo, an expert that the plaintiffs have consulted with and who has performed work on their behalf, is granted.

The motion [Sequence #015] by non-party Cohen Brothers Equities, Ltd. and second third-party defendant Edward Cohen for an order quashing subpoenas served on them is granted as defendant Mario has not sufficiently demonstrated why the documents sought by subpoena were not requested during the discovery phase of this litigation. Similarly, the branch of the motion [Sequence #017] by the plaintiffs for an order quashing the subpoena dated July 2, 2003 served on non-party Hanington is granted since the documentation sought should have been obtained early through discovery. The branch of this motion for an order quashing the subpoena directed at non-party Forcelli is granted without opposition.

The motion [Sequence #016] by defendants Mario for an order granting leave to renew and reargue its cross-motion for summary judgment is deemed to be a motion to reargue and as such is denied. The Court did not misapprehend the facts or misapply any controlling principles of law (see, Spatola v. Tarcher, 293 AD2d 523, 524; Azzopardi v. American Blower Corp., 192 AD2d 453, 454; Foley v. Roche, 68 AD2d 558).

Dated: September 30, 2003.