On April 23, 2026, the First Department issued a decision in Anderson v. Lubin, 2026 NY Slip Op. 02440, holding that plaintiffs were not allowed to depose defendants before defendants deposed plaintiffs, explaining:
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 leave 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). 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. 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.
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).
(Internal quotations and citation omitted).