Commercial Division Blog

Posted: May 24, 2021 / Categories Commercial, Discovery/Disclosure, Service of Process

Service of a Subpoena on One Member of a Partnership is Insufficient to Compel the Appearance of Another Partner

On May 10, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in Zelik v. Rubashkin, 2021 NY Slip Op. 31607(U), holding that service of a subpoena on one member of a partnership is insufficient to compel the appearance of another partner at a deposition, explaining:

Turning to the initial branch of defendant's motion which is to quash the subpoena, the Court notes that such subpoena was personally served on Wasser's partner, Michael Lipstein (Lipstein), rather than on Wasser himself. Service of the subpoena on Lipstein to compel pretrial testimony and document production from Wasser is insufficient because no additional mailing to Wasser under CPLR 308(2) was effectuated.

Plaintiffs contention that service of process of the subpoena was effectuated upon Wasser pursuant to CPLR § 310(a) is unavailing. CPLR 310, entitled "Personal service upon a partnership," states, in part, that personal service upon persons conducting a business as a partnership may be made by personally serving the summons upon any one of them. It cannot be disputed that service of process on a partnership by service on any of its individual partners is effective and proper under CPLR 310(a) insofar as the partnership is concerned. Here, however, CPLR 310(a) is inapplicable, inasmuch as the subpoena demanded Wasser's personal attendance and document production, rather than the partnership's general attendance and document production. Thus, the subpoena must be quashed in the absence of the follow-up mailing to Wasser as required by CPLR 308(2).

(Internal quotations and citations omitted).

The rules regarding how you start a lawsuit or compel non-parties to provide discovery in one can sometimes be esoteric. Failing properly to serve a non-party with a subpoena can render the subpoena void, regardless of whether the non-party had actual notice of the subpoena. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding the proper way to serve a non-party to compel them to give evidence in a lawsuit.

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