Commercial Division Blog

Posted: October 3, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Hillary S. Zilz / Categories Commercial, Discovery/Disclosure

Unopposed Motion for Judicial Subpoena Denied for Failure to Comply with CPLR 2307

On September 6, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in 63rd & 3rd NYC LLC v. Starr Indemnity & Liability Co., Index No. 650395/2020, denying, without prejudice, a motion, that was unopposed, requesting that the court issue a judicial subpoena directing a governmental department to produce documents because the movant failed to comply with the motion requirements of CPLR 2307. The Court explained:

The purpose of a judicial subpoena duces tecum is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding (Figueroa v 2289 3rd Ave Realty Corp. 2021 NY Slip Op 30539(U)[Sup. Ct, New York County 2021]).

The statute is reinforced by CPLR 3120(4), which expressly provides that the motion requirements in CPLR 2307 are applicable when a subpoena duces tecum is sought to be served on governmental departments in pretrial disclosure. If the subpoena duces tecum is joined with a subpoena ad testificandum, permitted by CPLR 3111 for the purpose of having the nonparty witness appear at a deposition with the books, records and other things that would be marked as exhibits and used for the deposition, the requirements in CPLR 2307 are applicable (Sanderson v New York City Transit Authority, 16 Misc 3d 1111(A), 847 N.Y.S.2d 898 [Sup. Ct, Kings County 2007]). The motion must be made on notice to the department or officer having custody of the records sought (CPLR 2307).

Here, the subpoena requested by STARR seeks documents, things, and testimony from the City of New York, Department of Buildings. The records sought fall within the ambit of CPLR 2307. Therefore, the motion must comply with the terms of CPLR 2307 and must be made upon notice to the City of New York. STARR correctly moved this court for issuance of the municipal subpoena, but failed to  attach an  affidavit  or  document evidencing that the within application was made on notice to the City of New York (CPLR 2307; see also CPLR 2302[b][requiring a motion for a judicial subpoena for the production of a record or document be made on at least one day's notice to the person having custody of the record]; Figueroa v 2289 3rd Ave Realty Corp. 2021 NY Slip Op 30539(U) [Sup. Ct, New York County 2021][recognizing the right of a party to move to  quash  a  judicial  subpoena  on  the ground of insufficient notice]).

The attorneys at Schlam Stone & Dolan are familiar with the motion requirements in the CPLR to obtain discovery. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.