Fourth Department Grants Leave in Case Deciding Right of Nonparty Witness' Attorney to Participate in Deposition

Sciara v. Surgical Associates of Western New York:

In this medical malpractice action, plaintiff alleges the defendant doctor negligently performed laparoscopic surgery on her.  During the non-party pathologist’s deposition, there was a verbal altercation between plaintiff’s counsel and respondent pathologist’s counsel.  The plaintiff moved to preclude the nonparty pathologist’s counsel from the rest of the deposition.  The Supreme Court required the pathologist to finish her deposition and permitted the pathologist’s counsel to be involved in the deposition as provided by 22 NYCR § 221.2 and 221.3.

The Fourth Department reversed holding that “counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition.”  The Court found that the Supreme Court erred in relying on 22 NYCR § 221.2 and 221.3, which allows an attorney of a nonparty to interrupt a deposition in specified circumstances.  The Fourth Department found that CPLR 3113 (c) is also applicable, as it provides depositions should commence “as permitted in the trial of actions in open court,” and it is well established that counsel for nonparty witnesses are not able to object or participate during trial.  Further, the Court pointed out that if there was a conflict between CPLR 3113 (c) and 22 NYCR § 221.2 and 221.3, the statute controls over the regulation.  While no participation by the nonparty’s counsel should be permitted, the court stated the nonparty had the right to seek a protective order if necessary.
 

Two members of the Fourth Department dissented.  They argued that there was no conflict.  According to the dissent, the rules were adopted twenty-three years after CPLR 3113 (c) came into existence, and as such, would not have been adopted if in direct conflict with the already existing statute.  In addition, the dissent cited to a Second Department case (Horowitz) in which the court took into account objections made by a nonparty’s counsel in the deposition context.

The Fourth Department granted leave to appeal to the Court of Appeals on June 7, 2013.