Commercial Division Blog

Posted: October 14, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, / Categories Commercial, Discovery/Disclosure

Notice Of Motion For Subpoena To Department Of Design and Construction of New York City Must Be Given To New York City

In an Opinion, dated September 29, 2022, in Lastinc, LLC v. AECOM USA, Inc., 2022 NY Slip Op 50958(U), Justice Robert R. Reed denied Plaintiff’s request, without prejudice, for the issuance of a judicial subpoena because plaintiff had failed to serve the motion on the City of New York even though the records sought fell within the ambit of CPLR 2307.  The Court explained: 

Here, the records sought by LASTINC 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. Plaintiff 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 as required by 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]).

Courts will strictly adhere to service requirements to obtain discovery, particularly as to non-parties and governmental entities and litigants should pay special attention to such requirements.  The attorneys at Schlam Stone & Dolan deal frequently with subpoenas.  Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning subpoenas.