Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc.

Nardelli and Buckley, JJ.,

dissent in a memorandum by Nardelli, J., as follows: I respectfully dissent to the extent that I vote to reverse the order of Supreme Court, grant plaintiffs’ motion to confirm the report of the Special Referee to the extent indicated herein, and deny defendant’s motion to reject that report.

It is well established that while the trial court is afforded broad discretion in supervising disclosure, this Court is vested with the corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse by the trial court (Mann v Cooper Tire Co., 33 AD3d 24, 29 [2006], lv denied 7 NY3d 718 [2006]; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765 [2002]).

The scope of disclosure set forth in CPLR 3101 is “generous, broad, and is to be construed liberally” (Mann v Cooper Tire Co., 33 AD3d at 29; see also Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). CPLR 3101 (a) entitles a party to “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” What constitutes “material and necessary” includes “ ‘any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason’ ” (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d at 406; see also Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376 [1991]). Moreover, every request for discovery must be gauged in the context of the particular case in which it is made and in light of the evidence presented to the court (see e.g. Andon v 302-304 Mott St. Assoc., 94 NY2d at 747).

A party seeking to establish that additional depositions are necessary must demonstrate that the representative already deposed provided inadequate information or had insufficient knowledge, and that there is a substantial likelihood that the person or persons sought for depositions possess information that is material and necessary to the prosecution of the case (Saxe v City of New York, 250 AD2d 751, 752 [1998]; Filpo v Linemaster Switch Corp., 244 AD2d 454 [1997]).

*366In the matter at bar, I agree with the Special Referee that Anita Mehta Vyas “knows nothing of consequence” and “has no knowledge of the transactions at issue.” Anita, who apparently became involved in the operations of Occidental Gems after the fraud which gave rise to the insurance claim, testified at a deposition that she had no knowledge of Occidental’s record keeping, memo procedures, profit and loss margin, or business volume during the relevant time period. In addition, Anita stated she had no personal knowledge of the ownership of Interings and Americast, the two companies implicated in the fraud, and then acknowledged that the basis of her belief that Interings was a Gembel company was derived from a brochure. Accordingly, I find it clear that Anita had insufficient knowledge of Occidental, and its operations, during the time period in question.

The testimony of Prabodh Mehta, the second representative produced by Occidental, can best be described as either deliberately evasive or hopelessly confused. Prabodh did state that: Vijay was the most knowledgeable regarding the underlying insurance claim as he handled the insurance; Vijay met with the insurance brokers and made the underlying claim; Prabodh does not know the basis of the claim, and his knowledge of the amount sought to be recovered comes from a document someone else prepared; and Vijay handled Occidental’s finances with Americast, Interings and Henri Carre, which transactions are at the very heart of the underlying claim.

In sum, it appears that Prabodh has very limited, if any, firsthand knowledge of the underlying transactions or of the claim itself and, what knowledge he does allege to possess, appears to be secondhand, with Vijay as its source. Accordingly, I further find that Prabodh has insufficient knowledge of Occidental, and its operations, during the relevant time period.

With regard to Vijay, in light of the evidence presented, I find his testimony would be material and necessary to plaintiffs’ case. Vijay oversaw the financial transactions of Occidental with Interings and Americast; was, by Prabodh’s admission, the most knowledgeable concerning the insurance claim; filed the insurance claim and dealt with the lawyers and insurance brokers involved with the claim; and, by defendant’s admission, currently enjoys a cordial business relationship with Pravin Mehta, whose purportedly felonious dealings spawned the insurance claim and ensuing lawsuits. Indeed, Vijay, to the exclusion of Prabodh, and without his knowledge, made an offer to Interings to purchase that company and, concomitantly, settle the underlying debt. Tellingly, Prabodh acknowledged at his deposition that Vijay possessed such authority. In view of this, it is *367clear that Vijay is, at the least, an agent of Occidental and must be produced by Occidental for a deposition.

With regard to the confidential arbitration proceeding in Belgium, I conclude that the testimony of Prabodh given at a deposition held on September 26, 2005, and the related documents, are material and necessary to this matter, and that defendant has failed to meet the burden of establishing the immunity of these items (Central Natl. Bank v Thorington, 115 AD2d 829, 830 [1985]). Accordingly, the testimony and documents should be provided to plaintiffs on a confidential basis.