Jose v. Consolidated Edison Co. of N.Y., Inc.

Jose v Consolidated Edison Co. of N.Y., Inc. 2026 NY Slip Op 05727 October 6, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Luis Jose, Plaintiff-Appellant, v Consolidated Edison Company of New York, Inc., et al., Defendants-Respondents. Vincent Vota et al., Nonparty Respondents. Decided and Entered: October 06, 2026 Index No. 161615/23|Appeal No. 7174|Case No. 2026-01598| Before: Moulton, J.P., Shulman, Hagler, Parker-Raso, JJ. Horn Appellate Group, Brooklyn (Scott T. Horn of counsel), for appellant. The Law Office of Eric D. Feldman, New York (Michael J. Kozoriz of counsel) for Vincent Vota and Liridon Qosaj, respondents. [*1] Order, Supreme Court, New York County (Matthew V. Grieco, J.), entered March 24, 2026, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to compel the deposition of M. Benios and granted the cross-motion of nonparties Vincent Vota and Liridon Qosaj pursuant to CPLR 3103 and 2304 to quash plaintiff's subpoenas, unanimously affirmed, without costs. Supreme Court providently exercised its discretion in denying plaintiff's motion to compel the deposition testimony of Benios after plaintiff had already deposed another witness on behalf of defendants. Plaintiff failed to make a detailed showing before the motion court of the insufficiency of the testimony of defendants' witness or of the substantial likelihood that Benios's testimony would lead to material and necessary information (see Duhe v Midence, 1 AD3d 279, 280 [1st Dept 2003]; Filpo v Linemaster Switch Corp., 244 AD2d 454, 454 [2d Dept 1997]). Supreme Court also providently exercised its discretion in quashing plaintiff's subpoenas of nonparties Vota and Qosaj, former employees of defendant Network Infrastructure Inc. These nonparties met their threshold burden by demonstrating that the subpoenas were "tantamount to a fishing expedition" based on the testimony of Network's project manager, who testified that Network performed a one-day job on August 4, 2023, three months before plaintiff's accident (Haron v Azoulay, 132 AD3d 475, 475-476 [1st Dept 2015]; see Matter of Kapon v Koch, 23 NY3d 32, 38 [2014]). In opposition, plaintiff failed to establish the relevance of Vota and Qosaj's testimony (Kapon, 23 NY3d at 34). To the extent plaintiff now argues on appeal that the project manager's testimony was inadequate, he did not raise any such argument before the motion court. Based on the foregoing, we need not address whether the subpoenas satisfied the notice requirements set forth by CPLR 3101(a)(4), which was not addressed by the motion court (see Kapon, 23 NY3d at 39). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 6, 2026