Opinion
00-032.
Decided August 23, 2000.
Petitioner appeals from an order of the Civil Court, New York County, entered on or about October 21, 1999 (Debra Rose Samuels, J.) which granted in part respondents' motion to suppress subpoenaed documents and to impose sanctions upon petitioner's counsel for frivolous conduct pursuant to 22 NYCRR 130-1.1.
Order entered October 21, 1999 (Debra Rose Samuels, J.) affirmed, with $10 costs.
PRESENT: HON. WILLIAM P. McCOOE, J.P. HON. WILLIAM J. DAVIS HON. PHYLLIS GANGEL-JACOB, Justices.
The numerous nonparty subpoenas issued herein by petitioner's counsel violated familiar and fundamental procedural rules ( see, CPLR 3107, 3120[b]), since they were served without notice to respondents while the underlying licensee holdover proceeding was off calendar and were accompanied by cover letters which, as the motion court accurately described, were "calculated to yield a turnover of documents directly to Petitioner's counsel." Further, the subpoenas sought a wide array of documents from various medical, governmental, financial and other entities, including documents which were either potentially privileged or not relevant to petitioner's case. In these circumstances, and since it appears that petitioner's counsel "chose to chart a course which it knew to be at variance with acceptable discovery practice so as to obtain by stealth that which could not be readily obtained through proper channels" ( Matter of Beiny, 129 AD2d 126, 133, lv dismissed, 71 NY2d 994), suppression of the documents covertly obtained was appropriate ( id., see, CPLR 3103[c]). Nor was it an abuse of discretion for the court to impose sanctions for frivolous conduct ( see, 22 NYCRR 130-1.1[a]; Elias v. Rothbeind, 189 AD2d 797), particularly given the unassailable record showing that counsel had previously engaged in and been admonished for similar discovery abuses ( see, Matter of Brussels Leasing Ltd. Partnership v. Henne, 174 Misc 2d 535, appeal dismissed, 256 AD2d 406).
This constitutes the decision and order of the court.