What did the court decide about who goes first in depositions?

The court held that defendants who filed a pre-answer motion preserved their priority to take party depositions, so plaintiffs needed court leave to depose defendants before the defendants' time to answer expired.

Can defendants depose all 27 plaintiffs?

Yes. The court ruled defendants may depose each individual plaintiff because each sues in his individual capacity and the presumptive limit of 10 depositions can be altered.

Do nonparty depositions and document discovery stay?

No. The decision states nonparty depositions are not subject to the party-deposition priority and may proceed under the court's deadlines along with document discovery.

What if plaintiffs think special circumstances justify going first?

Plaintiffs would need to show special circumstances (for example, that facts are solely within defendants' knowledge or a fiduciary duty) and move the court to vary priorities; here plaintiffs did not oppose or make that showing.

Anderson v. Lubin

Docket Index No. 655151/23|Appeal No. 6436|Case No. 2025-05030|

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

Civil

Filed: Apr 23, 2026 · 1 week ago
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Civil
Citation: 2026 NY Slip Op 02440
Docket numbers: Index No655151/23Appeal No6436Case No2025-05030

Appeal from a Supreme Court compliance conference order denying defendants' motion to vacate that order in a multi-plaintiff civil action

Summary

The Appellate Division, First Department modified a Supreme Court order concerning deposition priority in a multi-plaintiff civil case. The court held that defendants who filed a pre-answer motion preserved their CPLR 3106(a) priority to take party depositions and plaintiffs needed court leave to depose defendants before the defendants' time to answer expired. The Appellate Division also ruled that defendants are entitled to depose each individual plaintiff (all 27), not just 10, because each sues in his individual capacity and the Commercial Division presumptive limit can be altered. Nonparty depositions and document discovery may proceed as scheduled.

Issues Decided

Whether defendants who file a pre-answer motion preserve their priority to take party depositions under CPLR 3106(a)
Whether plaintiffs needed leave of court to depose defendants before defendants' time to answer expired
Whether special circumstances justified allowing plaintiffs to examine parties first without seeking leave
Whether defendants were limited to deposing 10 of 27 individual plaintiffs under the Commercial Division presumptive deposition limits

Court's Reasoning

The court relied on CPLR 3106(a) which requires plaintiff to obtain leave if it serves notice to depose a party before that party's responsive pleading time has expired; a pre-answer motion under CPLR 3211(f) extends the time to answer and thus the CPLR 3106(a) period. Because plaintiffs did not move for leave and there was no record that they had timely served any party deposition notices, defendants' priority remained. The court also explained that plaintiffs did not present opposition to allow the court to assess any special circumstances to alter priority, and that where each plaintiff sues individually defendants may depose each plaintiff despite the presumptive ten-deposition limit because the court may prospectively alter that limitation.

Authorities Cited

CPLR 3106(a)
CPLR 3211(f)
Halitzer v Ginsberg80 AD2d 771 (1st Dept 1981)
Peralta v John Tara, Inc.30 AD3d 256 (1st Dept 2006)
Histon v Hearn Dept. Stores, Inc.8 AD2d 801 (1st Dept 1959)

Parties

Plaintiff: Griffin Anderson et al.
Defendant: Joseph Lubin et al.
Attorney: Tibor L. Nagy, Jr. (Nagy Wolfe Appleton LLP) - for appellants
Attorney: Eve Levin (Susman Godfrey L.L.P.) - for respondents
Judge: Nancy M. Bannon

Key Dates

Appellate Division decision: 2026-04-23
Supreme Court order entered: 2025-07-15
Compliance conference order appealed (court's earlier order): 2025-06-17

What You Should Do Next

1
Defendants proceed with party depositions
Defendants should notice and take depositions of each plaintiff as permitted by the order, ensuring topics are relevant and within discovery scope.
2
Plaintiffs consider motion to seek leave
If plaintiffs still seek to depose defendants before answers are due, they should move for leave under CPLR 3106(a) and present any special circumstances supporting priority.
3
Counsel prepare discovery schedule adjustments
Counsel for both sides should confer to adjust the discovery timeline and document-deadline coordination in light of the court's ruling allowing nonparty discovery to proceed.

Frequently Asked Questions

What did the court decide about who goes first in depositions?: The court held that defendants who filed a pre-answer motion preserved their priority to take party depositions, so plaintiffs needed court leave to depose defendants before the defendants' time to answer expired.
Can defendants depose all 27 plaintiffs?: Yes. The court ruled defendants may depose each individual plaintiff because each sues in his individual capacity and the presumptive limit of 10 depositions can be altered.
Do nonparty depositions and document discovery stay?: No. The decision states nonparty depositions are not subject to the party-deposition priority and may proceed under the court's deadlines along with document discovery.
What if plaintiffs think special circumstances justify going first?: Plaintiffs would need to show special circumstances (for example, that facts are solely within defendants' knowledge or a fiduciary duty) and move the court to vary priorities; here plaintiffs did not oppose or make that showing.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Anderson v Lubin - 2026 NY Slip Op 02440

Anderson v Lubin

2026 NY Slip Op 02440

April 23, 2026

Appellate Division, First Department

Griffin Anderson et al., Plaintiffs-Respondents,

Joseph Lubin et al., Defendants-Appellants.

Decided and Entered: April 23, 2026

Index No. 655151/23|Appeal No. 6436|Case No. 2025-05030|

Before: Scarpulla, J.P., Friedman, Gesmer, Shulman, Chan, JJ.

Nagy Wolfe Appleton LLP, New York (Tibor L. Nagy, Jr. of counsel), for appellants.

Susman Godfrey L.L.P., New York (Eve Levin of counsel), for respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 15, 2025, which, to the extent appealed as limited by the briefs, denied defendants' motion to vacate the court's June 17, 2025 compliance conference order, unanimously modified, on the law, to grant the motion to the extent of preserving defendants' party deposition priority under CPLR 3106(a) with respect to depositions noticed before defendants' time to answer has elapsed, and to permit defendants to depose each plaintiff in this action, and otherwise affirmed, without costs.

Supreme Court should have granted defendants' motion to vacate the compliance conference order so as to preserve their priority in taking party depositions. Where a plaintiff seeks to depose a defendant before a responsive pleading is due, CPLR 3106(a) requires that "[l]eave of the court, granted on motion, shall be obtained if notice of the taking of the deposition of a party is served by the plaintiff before that party's time for serving a responsive pleading has expired." Where, as here, defendants have filed a pre-answer motion to dismiss, extending their time to answer under CPLR 3211(f), the extension also applies to the period in CPLR 3106(a) (
see

Peralta v John Tara, Inc.
, 30 AD3d 256, 256 [1st Dept 2006]; Patrick M. Connors, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C3106:2. Accordingly, in order to obtain a priority for party depositions, plaintiffs were required to move for leave, which they did not do (CPLR 3106[a]). In addition, the record does not contain any evidence that plaintiffs served a party deposition notice before defendants moved to preserve their priority.

Additionally, in order to deviate from the usual priority, plaintiffs were required to show that "special circumstances warrant the plaintiff's examining first," in which case, "the court has ample authority to vary priorities" (
Halitzer v Ginsberg
, 80 AD2d 771, 772 [1st Dept 1981] [internal ellipses omitted]). To establish special circumstances, plaintiffs must show that there is a fiduciary duty between the parties and circumstances "in which the pertinent facts are wholly within the knowledge of the defendant" (
NOPA Realty Corp. v Central Caterers
, 91 AD2d 991, 992 [2d Dept 1983]).

Here, however, Supreme Court could not have adequately evaluated the extent to which any special circumstances might exist because plaintiffs failed to oppose the motion. Therefore, although nonparty depositions are not subject to priority and may proceed under the court's deadlines, together with document discovery, defendants' party deposition priority remains intact to the extent provided under CPLR 3106(a).

Supreme Court also should not have limited defendants' party depositions to 10 of the 27 plaintiffs. Where each plaintiff sues in his individual capacity, "[d]efendant is entitled, if it deems it necessary, to examine each plaintiff with respect to matters that are relevant and material" (
Histon v Hearn Dept. Stores, Inc.
, 8 AD2d 801, 802 [1st Dept 1959]). Although rule 11-d(a)(1) of the Commercial Division Rules (22 NYCRR 202.70) presumptively limits each side to 10 depositions, rule 11(f) provides that "the court should consider the appropriateness of altering prospectively the presumptive limitations on depositions set forth in Rule 11-d." Accordingly, Supreme Court should have modified the compliance conference order to permit defendants to depose each individual plaintiff to ascertain the substance of each plaintiff's claims.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 23, 2026